Misconceptions About Mediation Advocacy
By Harinder S. Gahir
Lawyer, Mediator and Arbitrator
Former Chairperson CCP Review Tribunals
Former Vice Chair, Licence Appeal Tribunal, Ontario
Many lawyers incorrectly believe that mediation advocacy is much like trial advocacy.1 The two advocacy skill sets are entirely different.2 Some lawyers mistakenly view the mediator as the audience. However, in a mediation the audience is the other party3 that must decide the potential resolution of the conflict. Therefore, it is meant that a lawyer should develop a cooperative approach in dealings with the mediator and the other party during a mediation.
To develop a cooperative approach, the lawyer must acquire a new set of “mediation advocacy” skills. The traditional approach of trial advocacy does not ensure success in mediation.4 It is highly recommended that the mediation lawyer should avoid adversarial tactics because they stand in the way of achieving the best results.
Adversarial lawyers tend to operate on the assumption that a dispute must be resolved through the aggressive application of laws to facts. This approach supports research that lawyers are disproportionately oriented to an adversarial system,5 which does not work well in mediation. Lawyers bring the same adversarial assumptions to an arbitration and they fail to take full advantage of a process that is designed to resolve disputes with or without the shadow of the law.
A lawyer requires a very different skill set to persuade sometimes a hostile audience during a mediation6. This persuasion requires a change in mindset from adversarial to collaborative as the objective is different than a trial. At trial, the goal is to persuade the judge. In mediation, the goal is to convince the other party to the dispute”7. Most lawyers who have been trained in an adversarial trial setting, are not conscious of their adversarial nature and they operate subconsciously out of the adversarial mindset during a mediation.
The mediation lawyer must understand that in mediation, lawyers are initially advocates but soon become counselors who advise clients objectively without advocating anything. Many lawyers have difficulty in shedding their advocate’s role when they advise their clients, because they fear their clients may doubt their zeal”8. An adversary system has produced many lawyers who are ill-equipped for the mediation process.
Even in 2017, many lawyers believe that being a zealous advocate for their clients during the mediation is the only way to get the best deal for their clients. Furthermore, many lawyers mistakenly believe that the tough, brave, fearless, aggressive advocate wins, and the conciliatory one loses. “Some lawyers say that only a pit bull can survive. These attitudes undoubtedly highlight the litigation process more than deal-making. But in both domains, many lawyers and clients implicitly assume that the lawyer’s role is to be a fighter who will go in swinging”9.
Many lawyers present “case law” in mediation, often aggressively, as if they were submissions to the court. As such, they become law-centric, with an exclusive focus on their client’s legal rights as opposed to their interests10. Their adversarial approach demonstrates a lack of basic understanding of the mediation process. They fail to understand that the process is designed to work with the other party to reach a resolution.
Extensive research provides evidence that the adversarial approach in a mediation is merely wrong. “In a comprehensive analysis of twenty-eight different studies of negotiation simulations, led by Dutch psychologist Carsten De Dreu, the most successful negotiators turn out to be people who adopt a cooperative approach that focuses on meeting the needs of both parties.” The same is true of competent mediation lawyers. Creating value for both sides, an effacious lawyer in mediation can usually produce the best and most suitable agreements and relationships.
However, in adversarial setting mediations, “lawyers generally control the mediation process, considering it the functional equivalent of a private judicial settlement conference.”11
The proponents of an adversarial evaluative approach during a mediation believe that participants in mediation want the mediator to give some guidance as to the appropriate grounds for settlement – based on the law and industry standards. “Leonard R. Riskin suggests that the evaluative mediator helps the parties to understand the strengths and weaknesses of their positions and likely outcome of litigation or whatever other processes they will use if they fail to reach a resolution in mediation.”2 There is nothing wrong with the evaluation of a client’s case if it is done after considering the interests, wants and needs of the parties.
In every mediation, we have a choice: we can approach the negotiation as an adversarial forum in which one party wins and the other loses. Or we can approach it as an opportunity for a collaborative problem-solving an exercise in which both parties can benefit. It is important to note that a difficult mediation can always be changed from an adversarial contest to a mutually satisfying outcome.
1 Frank K. Gomberg, Ten Commandments For Effective Mediation Advocacy A mediation isn’t a pre-trial. Mediation is a forum for common sense. Mediations are not to be treated as war zones and the tactics which are appropriate and indeed, necessary for court (such as “destructive” cross-examination, positional arguments, rhetorical questions and even occasional sarcasm), are inappropriate for mediation. Going to a mediation and fighting is as silly as going to a pre-trial and somehow expecting a mediation – Osgoode Hall PD, Successful Mediation in Tort and Personal Injury Mediations, February 15-16, 2017
2 Richard M. Markus, Fundamental Misconceptions about Mediation Advocacy, 47 Clev. St. L. Rev. 1 (1999) available at http://engagedscholarship.csuhio.edu/clevstlrev/vol47/1ss1/3 at 4
4 James K.L. Lawrence, Mediation Advocacy: Partnering with the Mediator, Ohio State Journal on Dispute Resolution [vol. 15.2 2000] at 425
5 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, at 160
6 Richard M. Markus, Fundamental Misconceptions about Mediation Advocacy, 47 Clev. St. L. Rev. 1 (1999) available at http://engagedscholarship.csuhio.edu/clevstlrev/vol47/1ss1/3 at 5
7 James K.L. Lawrence, Mediation Advocacy: Partnering with the Mediator, Ohio State Journal on Dispute Resolution [vol. 15.2 2000] at 427
8 Ibid at 6
9 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
10 See Annabel Shaw, Mediation Advocacy, Law Research Paper, Laws 536: Negotiation and Mediation, Faculty of Law, Victoria University of Wellington, 2014
11 Jacqueline Nolan-Haley, Mediation: The “New Arbitration” Spring 2012 at 61