Mediation is a means of bringing parties together with the ultimate objective of obtaining a resolution to the issue between the parties which is acceptable to both. Parties that are happy and content and leave speaking to each other is a bonus. Above all the agreement they reach is their agreement.

The alchemy of advocacy lies in the marriage of representation and persuasion. An advocate represents a party and seeks to persuade a tribunal. This may be done by systematically undermining the case of the other side, by persuading the judge or by legal argument. At the end of this process there is almost inevitably a winner and a loser.

Although both mediation and the adversarial procedure may have their genesis in the court process it is quite clear that they are completely different.

This brings us to the challenge of mediation advocacy.

When parties seek mediation, it can be before the matter goes near a court, after legal advice has been taken or on the recommendation by the Court. Once the matter has reached the Court process, the belief may be that the mediator will tell the other party that their case has little merit and that the case should be dropped.
This belief could not be further from the reality of mediation.

The mediator is there to facilitate an agreement. The mediator is free to encourage the parties to look outside the strict legal principles of the particular dispute. Mediators often discover issues which would not usually be part of the presentation to the court and would not be disclosed to the other side. There may be “an elephant in the room” which is the real key to the dispute.

A mediator has the ability to explore what may be the real issue between the parties which may bear little resemblance to the legal arguments being pursued.

Ultimately the agreement reached is an agreement reached by the parties with the assistance or input of the mediator.

Where does this leave the mediation advocate?

How does an advocate instructed in a mediation as a mediation advocate approach the process?

Some advocates adopt the aggressive approach in Court and no doubt in the intensity of the Courtroom with the other side being aggressively challenged the client may feel that they have instructed a winner. In the mediation process this is likely to be counter productive, corrosive and in danger of undermining the whole process.

Whilst it is unlikely that the mediator will be persuaded or intimidated by that approach, at the very least it will not encourage a spirit of compromise from the other party!

Seeking to get the mediator on side and commencing a discourse on the legal and evidential merits of the case is equally unlikely to be endearing to the other party.

The impartiality of the mediator is fundamental to the success of mediation, the mediator is not a judge who is to be persuaded.

The wise advocate, however, recalls the marriage of representation and persuasion and considers how best to use it in the mediation arena. As the goal is agreement rather than the winner’s podium the advocate needs to adopt a different approach.

The advocate will want to set out their clients’ view of the case but this needs to be done in a reasoned and considered way. If it seems that there is a crucial issue that the other party appears not to have considered fully then, rather than seek to present this in a challenging way, it may be more effective to raise this is with the mediator in caucus. This then enables the mediator to deal with it in a non-confrontational manner and explore the reasons without provoking a defensive response.

The advocate needs to have a full understanding of the other party’s case and to encourage their client to be aware of how the other party may be viewing the dispute.

It is also important for there to be respect for the other party, they are not the enemy. This is a dispute that two normally reasonable people have become embroiled in. The advocate is there to assist not to belittle

Listening to what the other party is saying can be beneficial in how the matter is approached, as the parties may begin to modify some of their previously held views. As this happens it may provide an opportunity for the parties to move closer to an agreement and this should not be lost.

The technique of persuasion, therefore, can be used in mediation advocacy but it takes a different form. It relies upon the flexibility of the advocate, the understanding of the shifting sands during the mediation process and being able to understand the nuances behind the dispute, while assisting your client to recognise the benefits of these movements. Advocacy in this form will help your client to fulfil the purpose of the mediation: to find an acceptable agreement between the parties.

By Julie Mackenize