It’s not about your capacities or skills. When you negotiate with a fellow lawyer, you’re using the legal facts and the description of the case made by your client and you know that if you can’t come to a settlement with the other party’s lawyer, you will meet her/him at the tribunal, so you are facing severe limits to what you can share – you don’t want that information to be used against your client in front of the judge later on.
You have indeed a lot of good reasons: who decides at the tribunal is the judge, who you can’t control, whereas during the mediation, who decides is your client, on the basis of your advice. Mediation is a unique opportunity for you to reinforce and develop the relationships with your client. To recommend mediation is not a weakness, but a proof of respect for your client’s interests.
Of course you can and if you think this is the best way to solve the problem of your client, you should. The judge can decide the suspension of the case to let the parties come to a settlement through mediation. In such a case, the judge can validate the mediation agreement like any other normal contract.
As a lawyer, it’s your job to study the case of your client and to analyze the proof she/he has supplied as well as all related legal issues and arguments. From this work, you will have an idea of your chances of winning at the tribunal, chances that are always unpredictable. This preliminary work is essential to mediation, since it will allow you to supply to your clients all the elements he will need to take the best decision satisfying her/his interests and future during the mediation session. The better informed the parties are about the legal aspects of their case, the more they are able to participate in full confidence to the process of mediation.