Mediation is a dynamic and collaborative process designed to resolve disputes amicably, but the question of whether legal advice is necessary/ helpful often arises. While legal advice before/ during mediation is not compulsory, it can be incredibly beneficial. This blog aims to explore the value of legal guidance in the mediation process and emphasises the welcoming nature of legal support or the assistance of a McKenzie friend as an alternative.

What is a McKenzie Friend?

A McKenzie Friend is a non-professional individual who assists a litigant in person (someone representing themselves). They provide moral support, take notes, help with case papers, and quietly give advice on legal procedures and issues. However, a McKenzie Friend is not a qualified legal representative; they cannot speak on behalf of the litigant, conduct the case, or act as an advocate. They do not need formal legal training and their role is primarily supportive rather than participatory in a legal capacity.

1.        Legal Advice: A Valuable Asset, albeit it, not a Necessity:

a. Understanding the Dispute: Legal advice provides participants with a clear understanding of the legal aspects of their dispute. It helps in grasping the potential implications, rights, and responsibilities involved.

b. Assessing Options and Alternatives: Legal professionals can help participants evaluate their options. This strategic guidance is often very valuable in preparing for the mediation or throughout (at appropriate times – see below).

c. Setting Realistic Expectations: Legal advice helps participants set realistic expectations for the mediation. It provides insights into the possible (legal) outcomes and assists in formulating reasonable objectives.

2.     The Voluntary Nature of Legal Advice:

a. Choice and Autonomy: One of the benefits of mediation is its voluntary nature. Participants also have the autonomy to decide whether or not to seek legal advice. It's a personal choice that depends on the complexity of the situation and the individual's comfort level.

b. Tailoring to Individual Needs: The decision to seek legal advice is based on individual needs. Some may find it beneficial to have a legal professional guide them, while others may feel confident navigating the process without extensive legal input.

c. Balancing Legal and Non-Legal Considerations: Participants can strike a balance between legal and non-legal considerations. The flexible nature of mediation allows for a personalised approach that suits the unique needs and preferences of the participants involved.

3.     Legal Professionals in Mediation sessions:

a. Welcoming Lawyers to Mediation: Assuming participants agree to their attendance, Lawyers are more than welcome to join or support participants in mediations. Their expertise can be a valuable asset in facilitating communication, ensuring legal accuracy, and providing overall guidance. (Please note, family mediation is slightly different -see below highlighting why obtaining legal advice in between family mediation sessions).

b. Enhancing Communication: Lawyers can play a supportive role in enhancing communication between participants. Their presence can foster an environment of collaboration and ensure that legal perspectives are effectively communicated and understood.

c. Facilitating Agreements: Legal professionals can assist in crafting agreements that align with legal standards. Their involvement ensures that the final resolution is legally sound and addresses the concerns of all participants.

4.     What is a McKenzie friend’s role:

a. Support from Non-Legal Advisors: For those who choose not to engage lawyers, the option of using a McKenzie friend is available. A McKenzie friend is a non-legal advisor who can offer support, and assistance during the mediation process.

b. Guidance without Legal Representation: McKenzie friends offer guidance without providing legal representation. Their role is to offer moral support, help with paperwork, and assist participants in understanding the mediation process.

c. Affordable and Accessible Support: McKenzie friends provide a voluntary/ affordable and accessible alternative for participants who may not require extensive legal assistance but would benefit from additional support during mediation.

5. Fairness during the Mediation:

Ensuring that both participants agree on who attends a mediation (including legal advisers/ McKenzie friend) is crucial for fostering a sense of trust and safety, which is essential for open communication and effective resolution. In family disputes, for example, lawyers are often not present during the mediation sessions. Instead, dedicated reflection time between sessions allows participants to seek legal advice, ensuring they make informed decisions. If participants are nervous about mediation, shuttle mediation is designed to help to maintain a comfortable and constructive environment. Further, mediation agreements are not legally binding until reviewed and signed off by legal representatives, safeguarding the interests of both participants and ensuring the agreement is fair and legally sound.

While legal advice ‘within’ mediation is not compulsory, its value cannot be overstated. It empowers participants with knowledge, helps set realistic expectations, and contributes to a more informed and strategic approach to resolution. The voluntary nature of seeking legal advice aligns with the adaptable and flexible essence of mediation. Additionally, the welcoming attitude towards lawyers and the availability of a McKenzie friend ensures that participants can choose the level of legal support that best suits their needs, fostering an environment where mediation becomes a collaborative and empowered journey toward resolution.

To find out more about how Latitude Mediation can support you get in touch here or email info@latitudemediation.co.uk.