Legal Representation and the Use of Witnesses in Commercial Mediation
In the context of commercial mediation in England, parties often seek clarity on whether legal counsel should attend and whether the use of fact or expert witnesses is appropriate. These considerations can significantly shape the dynamic and outcome of a mediation process. This article addresses both questions from a legal and practical perspective.
Are the Parties Typically Represented by Lawyers?
Yes — in commercial mediations, it is typical and often advisable for parties to be represented by lawyers. Legal counsel, whether solicitors or barristers, play an important role in the process. Their presence ensures that:
In complex or high-stakes disputes, legal representatives may lead the negotiations alongside the client. In other cases, their role may be more supportive or advisory, depending on the parties’ preferences and the mediator’s style. While not a procedural requirement, the absence of legal representation can place a party at a disadvantage, particularly where the opposing side is legally advised.The mediator isn’t of course there to advise either party on their legal position.
Are Fact and Expert Witnesses Commonly Used?
The use of fact and expert witnesses in commercial mediation is not common, but it is permissible and sometimes strategically useful. Unlike litigation or arbitration, mediation is not an evidentiary forum, and it does not involve formal witness examination or cross-examination. That said, witnesses may be involved in the following ways:
Where witnesses are used, it is generally arranged with the agreement of all parties in advance. Their participation is informal and typically confined to providing information during a private session or at the request of the mediator.
In practice, the inclusion of witnesses is more likely in complex or technical disputes where their expertise directly supports a resolution. Even then, written reports may suffice without their physical attendance.
Conclusion
In commercial mediation, legal representation is the norm and plays an important role in safeguarding each party’s position. While the use of witnesses is less common, their involvement can be beneficial in certain scenarios. As with most aspects of mediation, the decision to involve lawyers or witnesses is ultimately guided by the nature of the dispute, the sums involved and the parties’ strategic needs, all within the framework of a flexible and confidential process.