Mediators and legal advice, at Effective Dispute Solutions we get several enquiries from clients who are confused as to what to expect at a mediation and if they require legal advice and whether the mediator can provide this legal advice.
Firstly you do not need a solicitor present at a mediation, even if the other side has one present, you will not be disadvantaged in anyway, the mediator will not allow the other party or their solicitor to bully you if you do not have a solicitor present, part of the mediators role is to address any imbalance of power and to remain independent.
However I always encourage clients to seek legal advice if they are unsure about their legal position prior to a mediation, or have a solicitor on standby over the telephone whilst they attend mediation, which reduces any attendance costs.
I do prefer if clients have solicitors present or on standby over the telephone whilst I mediate for them, as it makes life easier, it is not imperative, just my preference, being an independent mediator I am unable to advise clients of their legal position, which is best left for their solicitors.
Mediators are independent, they cannot provide legal advice if they are acting as your mediator, regardless of whether they are practicing solicitors or barristers. By all means you can have a solicitor or barrister who also practices as a mediator, to act as your legal advisor but they simply are there as your legal advisor not mediator.
As mediators we walk a strict tightrope when a party seeks clarification, by all means we can correct something that they raise as being incorrect, but we cannot advise them on their legal position.
This calls into question the legal merits of their case, several times I have had parties boast they have a watertight case, and surely they will succeed at trial. To which I reply, it will depend upon the Judge on the day and how they view your case, evidence, there is always a litigation risk. The only advice I will depart with to clients is, if you are unsure, then seek independent legal advice.