Mediation advocacy is founded on two principles which practitioners would
do well to remember.
First, we are focusing on what is important to the client - not to the Court and
not to the law. This requires the discovery of and a familiarity with the client’s
business, financial, personal or social affairs to an extent that goes well
beyond what we would need to prosecute or defend a legal cause of action,
and which drives the client’s expectations and emotions. It also challenges
the advocate’s training, experience and orthodoxy.
Second, mediation, unlike most civil justice processes, is not a vehicle for
deciding who is right in the dispute. The mediator is unlikely to care who is
right, unless to do so has a significant impact on advancing a settlement which
is durable. And if the client is trying to use the process simply to demonstrate
he is right, as a precursor to an open court vindication, he is unlikely to get a
settlement at all. Mediation, rather, is a medium by which the client can become
better off in terms of outcome than he would be without it, though curiously,
by accepting that the other participants in the dispute also need to feel ‘better
off’. The advocate needs to focus on what might potentially be available –
including things far beyond the remit of the Court – that both parties may find
acceptable as an outcome, rather than just his or her own client.
So what does this mean for professionals steeped in a confrontational litigious mentality, from training and practice? It means transition. Transition from that practitioner to a consensual practitioner, with certain caveats.
As I say, the mediation community likes to sell mediation on the basis of client
empowerment, but from your perspective this in many respects is a fallacy:
you are not going to allow the client without restriction to go to mediation
freely to say and do whatever he wants. There will be advice, guidance and
preparation beforehand. As a lawyer or other professional representative,
you will still want to defend the interests of the client as you see them.
Obviously if you’re acting in the capacity of the client’s champion then you
are going to be much more protective of what you know to be the client’s
legal rights than if you are relaxed and you think you’re acting collaboratively
with the other side in order to solve a problem. From a starting position, that
is the difference in approach between acting confrontationally – or at least
competitively – and collaboratively at the outset of the day.
These issues are discussed in more detail in Andrew Goodman's Transition in Mediation Advocacy 19 page article available here - and to be included in his forthcoming book Advanced Mediation Advocacy.
Also available: