While mediation can be highly effective, it is not a panacea. One key factor influencing a mediation’s outcome is whether the parties have legal representation. Having participated in hundreds of mediations, I can confidently say that lawyers play a crucial role in the mediation process, both before, during, and after. In this article, I discuss the lawyer’s valuable role in representing their client at each stage.

Before Mediation:

Having a lawyer before mediation can be invaluable in helping the client to prepare and negotiate effectively. The lawyer assists by reviewing the case, identifying the issues, explaining the law, helping the client understand their rights and obligations under the law, evaluating the strengths and weaknesses of the case, and developing a strategy for mediation. When appropriate, the lawyer also helps the client prepare for mediation by determining whether to request or provide further disclosure or to obtain expert reports. These additional steps can help to avoid surprises and misunderstandings during the mediation. They can also help to facilitate a constructive dialogue.

Before the mediation, the lawyer will also assist the client by preparing a mediation brief that outlines the facts, issues, the relevant law, and the client’s position regarding each matter in dispute.

During Mediation:

During the mediation, the lawyer’s role includes protecting the client’s rights and interests and diffusing instances of power imbalance while negotiating persuasively, respectfully, and in good faith. As the process proceeds, the lawyer advocates while guiding the client, exploring options, serving as the client’s ally, and providing objective and professional advice.

As negotiations progress, the lawyer’s role includes helping the client to stay focused, ensuring that the client makes informed decisions by helping the client to understand the legal issues, brainstorming the different options for resolution, and helping the client to appreciate and assess the risks of not settling, including the costs of litigating the matter.

Disputes, particularly in family and estate matters, can be stressful and emotional, as they may affect the client’s personal life, plans, and children’s well-being. It is not uncommon for litigants to experience feelings of anger, sadness, or frustration. A lawyer can help their client cope with these emotions as they arise during the mediation by helping diffuse the client’s feelings and by saving face by normalizing the sentiments, if not the behaviour. When necessary, counsel can suggest breaks when appropriate and discuss their observations with the client, including how the client’s conduct may affect the negotiations or the likelihood of a settlement. These steps can help de-escalate the client’s emotions and give the client more confidence to continue the negotiations.

Legal representation during the mediation helps ensure a fair and enforceable agreement. In family law matters, disputes can have long-term consequences for both parties and their children. Any agreement reached during the mediation must be fair and enforceable. Having a lawyer during the mediation helps ensure that any agreement reached accurately reflects the client’s needs and interests and is supported by law. Once the parties reach a consensus, the lawyer helps formalize the deal by drafting an agreement that accurately reflects the settlement, contains all the necessary terms and conditions, and is enforceable.

Post Mediation:

After the mediation, the role of a lawyer includes ensuring that the client and the other party comply with their responsibilities. A lawyer can also help their client file the agreement with the court if deemed appropriate. If disputes or issues arise after the mediation, lawyers can help their clients enforce the terms of the agreement through negotiation, mediation, or litigation.


Lawyers play a significant and valuable role in representing their clients before, during, and after a mediation. They help their clients prepare for the mediation, provide legal advice and guidance, formalize the agreement, and ensure that the parties comply with their obligations under the deal after the mediation.

Written by David A. Paul, K.C. (BGS, LLB, LLM, RRM)