Adversarial Versus Problem Solving Approach In Resolving Disputes
By Harinder S. Gahir
Lawyer, Mediator and Arbitrator
Former Chairperson CCP Review Tribunals
Former Vice Chair, Licence Appeal Tribunal, Ontario
The traditional adversarial approach may be essential in the litigation process, but it does not work well in mediation. Many lawyers bring the same adversarial skills into negotiation. In the past, “Coercion, manipulation, even dirty tricks were all too acceptable means for ‘winning’ in mediation. By adopting these skills, there were tradeoffs and compromises, winners and losers. And ‘resolution’ often came with seep wounding-psychological, emotional, financial for both parties1. The public and the profession does not expect this out of mediation. We need more skilled and better trained and equipped mediation advocates to rein in the overly zealous advocacy displayed at mediation”.2
The mediation advocate must acquire a new set of “mediation advocacy” skills because traditional trial advocacy does not ensure optimal success in mediation. We need to focus on our relationship with the other lawyer and the mediator and must explore why and how we as an advocate for our client partner with the mediator to achieve optimal results.3
To achieve the above objectives, we do not need to entirely discard evaluative techniques. “The empirical evidence suggests that most lawyers are unlikely to be able to sustain purely facilitative, non-evaluative behavior in mediation.”4 We may use cautiously cooperative strategy to create “settlement momentum” by starting cooperatively, slowly adapting with the dynamics of the mediation.5
We can reap substantial benefits for our clients when we act with courtesy and professionalism and are willing to work with the other side to reach a mediated solution6. Successful mediation starts with a lawyer who has the correct attitude and brings the same creativity, energy, and dedication to this process as we do to our litigation. Instead of being the client’s sword and shield, we must be the client’s problem solver and peacemaker.
It is essential to remember that, “litigants not only want justice, they expect a careful, thorough and unbiased procedure over which they retain at least some control – they want someone to listen and understand.”7 We must keep in mind mediation’s flexibility as mediation is oriented toward openness and adaptability.8 It is a flexible, informal, and non-adversarial process that allows creative settlements based on legislative requirements, industry standards, and the needs, concerns and wants of the parties.
1 Gary Friedman and Jack Himmelstein, Challenging Conflict: Mediation Through Understanding (ABA Books 2009) at xvii
2 Jacqueline Nolan-Haley, Mediation: The “New Arbitration” Spring 2012 at 93
3 James K. L. Lawrence, Mediation Advocacy: Partnering with the Mediator, 2000, 15 Ohio St. J. on Disp. Resol. 425, accessed on April 16, 2017
4 Chris Guthrie, The Lawyer’s Philosophical map and Disputant’s Perceptual Impediments to Facilitative Mediation and Lawyering, Harvard Negotiation Law Review, 6 Harv. Negot. L. Rev. 145 2001 content downloaded on April 16, 2016. Although the available empirical evidence does not – and could not – describe how all lawyers behave, it does describe the tendencies that most lawyers are likely to exhibit. Consistent with Riskin’s astute observations, the empirical evidence suggests that most lawyers are unlikely to be able to sustain purely facilitative, non-evaluative behavior in mediation.
5 Peter Robinson Contending With Wolves in Sheep’s Clothing: A Cautiously Cooperative Approach to Mediation Advocacy, Baylor Law Review Vol.50.4, Heinonline 50 Baylor L. Rev 963 1998, contents downloaded on April 16, 2017, at 976
6 Moris Irvine, Some Do’s and Don’ts of Mediation Advocacy, Washington State Bar News, Heinonline 57 Wash. St. B. News 35 2003, content downloaded on April 15, 2017, at 36
7 John Philips, Mediation as One Step in Adversarial Litigation: One Country Lawyer’s Experience, Journal of Dispute Resolution, Heinonline 2002 J. Disp. Resol 143 2002, Content downloaded on April 15, 2017, at 153
8 Susan T. Mackenzie, A Mediator’s Perspective of Effective Mediation Advocacy, The Practical Litigator, material accessed online on April 16, 2017, at 26