The short answer is: No, no competent adult has to have an attorney to resolve a dispute, in court or out. But the better answer is that while you don’t have to have an attorney, you may find you really want one.
No one can replace an attorney. In fact, by law, only an attorney can do what they do. They are ethically bound to act in their client’s best interest; your attorney is your advocate. They are the only people who can legally tell you how the law applies to your situation—including situations controlled by contracts. Applying the law to your particular situation is called practicing law and only an attorney licensed by the state of Tennessee can do that in Tennessee.
Compare that to an arbitrator, who acts as a private judge, or a mediator who acts as a facilitator guiding the parties involved in reaching their own resolution. Arbitrators and Mediators are neutrals. For that very reason, they cannot give you legal advice even if they also happen to be licensed attorneys. To give any or even all party(ies) legal advice would mean they’re no longer neutral.
The real question is, when do you need legal advice and advocacy vs. a neutral person who can help you resolve an issue without legal advice or advocacy? Turns out those things are not at all mutually exclusive—often, seeking legal counsel is best whether you choose to pursue resolution through arbitration or mediation or court trial. But, both arbitration and mediation typically require less of an attorney’s time and usually end up costing significantly less money and take far less time to get to closure than going to trial.
Let’s look at different scenarios and how they might play out to the least expensive solution.
First, if you are in a dispute with someone, are they talking to you? Do they want to resolve the issue, too? Are they open to going to a mediator, for example, to work out a resolution without anyone taking legal action? If so, seeking mediation privately without involving an attorney may be a perfectly legitimate course of action. However, if you reach an agreement via mediation, having that agreement reviewed by an attorney prior to signing it is in your best interest. A mediator can’t tell you how the law would enforce the terms of your contract or if they’re even enforceable. That said, it’s up to you to decide what level of risk you’re comfortable with.
Let’s use a hypothetical example: let’s say your neighbor’s son paintballed your fence and your neighbor had their son repaint it. However, the son painted it a different color and it turns out that his parents chose the paint because they like that color better. You don’t. You want them to repaint the fence back to the original color and they want you to accept that it looks better the color they chose.
Now, let’s say you and your neighbor decide to mediate and you come to an agreement that says you would both like the fence better in a different, new color and your neighbor has agreed to repaint the fence that color. A mediator may ask you questions like “when will that get done?” and “who will pick out the exact color at the paint store?” and “what if the color doesn’t come out the way you expected and one of you ends up disliking it?” This is to help you think through the potential unintended consequences of the agreement.
Once you’re done writing your agreement, you may decide that in a worst case scenario, you will have to repaint the fence yourself and that the cost of repainting the fence is less than the cost of hiring an attorney to review the agreement before signing it and so you want to just go ahead and sign it without legal review. That’s your choice and it’s perfectly legitimate to decide to assume the risk.
However, if, for example, you decide to go to an attorney for review, your lawyer might point out that there is a risk if the son gets injured while repainting the fence because he’s working on your property. She or he might suggest adding “limits of liability,” for example. Sometimes we discover we’re assuming a lot more risk than we imagined when we take a contract to an attorney. One of the ways lawyers are particularly helpful is in assessing the risk fully and preventing us from ending up in a situation we would not have predicted on our own.
Let’s look at a similar hypothetical problem with very different personalities involved. This time, let’s say your neighbor’s son paintballed your fence and you caught it on video, but your neighbor won’t even speak to you. You’ve tried leaving notes, knocking on the door, and when you finally caught them when they came out to get the mail one day, they told you to get lost and slammed the door in your face. This is not a situation a mediator can help with. A mediator has no power to make the other party come to mediation; only the court can order them talk to you. That said, you have many options--here are the ones that come to mind for me:
do research on small claims and determine if that’s a process you are willing to pursue on your own (you might start here if you’re in TN: http://www.tsc.state.tn.us/programs/self-help-center)
find an attorney to help you through the process of filing a claim with the understanding that you’re most likely going to have to pay out of pocket for his or her time
decide you really wanted to repaint the fence a new color anyway and this is the perfect motivation to get it done and repaint the fence yourself
leave the fence as is and ignore it in the hope that your neighbor gets tired of looking at it and offers to repaint it.
You may decide you can get through the situation without an attorney whether you decide to do nothing, file a claim, or paint the fence yourself. However, if you’re going to file a claim, it might be worth finding out how much an attorney would charge to help you through that process—even telling someone which form to fill out is considered the practice of law, so without an attorney to guide you, you will need to figure each step out on your own.
Finally, let’s talk about the most common scenario that brings people into mediation: the parties are already in the middle of a suit and the court and/or their attorneys believe their clients may be able to settle their case faster, cheaper, and better by mediating.
Attorneys know clients often end up happier, faster when they resolve their issue themselves through mediation. Attorneys are also pivotal to this process—having your attorney with you during mediation allows for you to have an advocate who can answer all your legal questions and review any mediation agreement you reach right then and there, allowing you to get to resolution often in a few hours.
So, yes, having an attorney is always a good idea when you’re in a dispute with someone that may have legal implications. But you can balance that with mediation (or Arbitration) to keep the cost of representation lower and, even better, greatly reduce the time it takes to reach resolution. That said, it’s always your choice to decide whether you need an attorney or not.
Disclaimer: nothing in this blog should be interpreted as legal advice; Arbitration and Mediation Services does not and cannot offer legal advice.