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Mediation Advocacy

Mediation Advocacy

Part I

Overview

Mediation has become an indispensable and highly useful tool for lawyers in civil litigation. There is an increasing evidence, including empirical, that mediation often saves substantial time and money and produces results that are satisfying to the litigants. In some cases, these results would not have been attainable in a trial.1 Lawyers regularly appear in mediations as advocates for their clients. In my experience, most lawyers take an adversarial approach to a negotiation, as if they were representing their clients at a trial. Lawyers need to know the benefits of adversarial advocacy and interest based facilitative support in arbitration that may be applied with or without the shadow of the law.

Part II of the paper explores an overview of the mediation and different types of interventions. Part III examines misconception about mediation advocacy, part IV examines in detail the advocacy skills in interest-based problem-solving negotiation, part V is a conclusion.

Part II

Introduction

The lawyer in mediation advocates for a client’s best interest within a process designed to resolve a conflict. The mediation advocate is uncertain of the uncertainty of the strategies that the opposing party will use2. The parties are sometimes unsure whether the other side will try to resolve the dispute with adversarial or cooperative techniques. This paper evaluates both adversarial and cooperative (interest based) advocacy techniques available in mediation.

“Generally, the negotiation literature distinguishes two approaches to negotiating: competitive (adversarial) and co-operative (interest-based problem solving). Strategically choosing between these two approaches is essential for effective advocacy in mediation. The mediation advocate should balance competitive and cooperative strategies with the other party and the mediator.”3

Some lawyers mistakenly believe that the mediator is the one who has the skills and primary responsibility to engage the parties in the problem-solving exercise. The advocacy skills of lawyers who represent their clients in mediation are equally important. These skills (or lack thereof) would determine the success of a negotiation.

Negotiation skills are central to being a competent lawyer, and lawyers play a critical role in resolving legal issues in an arbitration. Because of their skills and experience, lawyers have what Abraham Lincoln described as a “superior opportunity to do good.” Lawyers can be peacemakers, they can help people construct just and durable commitments, feel protected, recover from a loss, and resolve disputes. However, lawyers also can do considerable harm. They can create situations and run up substantial transaction costs4.

Effectual lawyers are good negotiators who are masters of the art of persuasion and at the same time can understand the other side’s position, interests, and perspectives.

Rather than using an adversarial approach, a competent lawyer can adopt a problem-solving approach, in dealing with their clients and with opposing lawyers.

To critically understand the advocacy skills required of a lawyer to be successful at a mediation, we must understand different types of intervention. We cannot choose a mediator without knowing the different kinds of mediation techniques, as different mediators are trained in various methods.

1 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

2 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 963-964

3 Ibid at 964

4 Robert H. Mnooking, Scott R.Peppet and Andrew S. Tulumello, Beyond Winning Negotiating to Create Value in Deals and Disputes, The Belknap Press of Harvard University Press, Second printing 2000, at 3