What questions should I ask my Lawyer?
SAQ - essential background preparation for mediation.
Mediation is not an alternative to the courts system when it comes to dispute resolution. It is complimentary to our courts. Each has its own place in the spectrum of dispute resolution. A common question I am asked is, "I want you to resolve my dispute without having to go to my lawyer. Can you help me with this?" For simple matters, and where the dollar amount is less than say $15,000, the answer is, yes. For dollar amounts greater than this, the simple answer is that, although I can, its not in your best interest for me to do so.
Mediation is basically a facilitated negotiation, with the mediator having no personal interest in the final result. This way, we can remain unbiased in helping both sides re-evaluate the matter at hand with all aspects considered. The agreed result is, generally, not a result that parties are happy with, but it is a result that they can live with under the circumstances, again taking the full picture into consideration.
In order for you to be able to negotiate a realistic settlement, you need to know what your fallback position or plan B is, should you not be able to settle this matter consensually. It is important to seek legal advice for this, checking of course that your lawyer is not anti-mediation and pro-litigation (as some legal people are). The types of questions you want your lawyer to answer in writing for you are:
- What percentage chance do you give me of winning this and what amount are we likely to be awarded?
- Please can you provide me with an approximate timetable from when we decide to instigate proceedings, until we get the judge's decision and then, how long will it likely take to collect the money if we win?
- What is your estimate of total fees for this plus the likely costs of disbursements including filing and court costs?
- What is the breakdown of hourly rates these fees are based on?
If we were to lose and costs were awarded against us, what is that amount likely to be?
- If you were acting for the other side, what percentage chance do you think you would be giving them of a win?
Most lawyers will not be happy about their client asking such questions. This is because it ties them down to a position they can't wriggle out of in the future if they decide it all becomes too hard and they either want to significantly change your percentage chance or, they want to charge you lots more. Asking these questions makes them think long and hard about the real merits of your situation and it puts them on notice that they will be measured by this position. You will be doing very well to get a straight answer out of any lawyer, or other advocate for that matter. At the end of the day, you are the client and you have a right to know this type of information before you embark on the litigation bus.
In parallel with this, it usually a good idea to talk (not email at this stage) to the other side about the possibility of utilising mediation to resolve the matter. If they appear hesitant, then don't push them for an answer, but ask them to seek advice first.
I hope this is of some help. Please don't hesitate to call me on 0800 HELP ME or email on firstname.lastname@example.org should you wish to discuss anything further.