Mediation Advocacy (Again)

In my post here on 19 September, I railed on about the fork in the road of advocacy – one towards mediation, the other towards traditional court advocacy. I said, “Court advocacy is to mediation advocacy, as tennis is to cage fighting. Without an umpire.” My theme: although there is some overlap of skills, the two are sufficiently different that the advocate should concentrate his or her practice on one or the other.

In the Spring 2012 Advocates’ Journal there is an article by the Chief Justice of Ontario which lays bare the differences between court and mediation advocacy in clear and simple language. It makes my imagery look clumsy and redundant.

The article is entitled “Advocacy in mediation: Tips”. It opens by stressing the main point I was fumbling to make: mediation advocacy is, “very different from what is required in court.” Mediation is negotiation and bargaining. The target of your persuasive efforts in mediation is to get the other side to modify its position, or else to get the mediator to sell your position to the other side.

The article gives eleven valuable tips for mediation advocacy. Some of them highlight the contrasts between mediation advocacy and traditional rights-based civil advocacy. They reveal what a different game mediation is, and what different skill sets it calls for.

Tip 3: do not enter into pre-mediation bargaining. You will lose flexibility. “It is virtually impossible to get the horse back into the barn.” Traditional advocates will hold settlement discussions at any stage of the proceeding.

Tip 5: make sure your client and the opponent’s client will be present. His Honour emphasizes it is important for your success that the client projects the right image – ” Good mediators can smell weakness…A tough, firm client can be your best weapon at mediation. The client can also be the weakest link in your team.” Traditional advocates will not let their clients be exposed to this kind of pressure or scrutiny if they can prevent it.

Tip 9: Don’t be afraid to make use of silences. Do not inadvertently send the wrong message by taking time to consider an absurd proposal.

Tip 10: Beware of fatigue, greed and fear – they can lead to settlements that are unwise. Compromise is ok, but “Don’t chase the deal.” The pressure cooker situation that Tips 9 and 10 refer to are the goal of mediation advocacy: they are a by-product of traditional advocacy.

Tip 11: The ultimate difference between a good advocate in mediation and the “also rans” is the ability to to close. “It’s all about closing a deal – some can, some can’t.” The difference between a good traditional advocate and the “also rans” is the ability to harness and adduce evidence persuasively.

Comments

  1. Tip 3: do not enter into pre-mediation bargaining. You will lose flexibility. “It is virtually impossible to get the horse back into the barn.” Traditional advocates will hold settlement discussions at any stage of the proceeding.

    Hence, at least where litigation is involved, increasing the cost of the process to the clients.

    Guess who wins either way (so long as one has a paying client, of course).

  2. David, I wasn’t sure which you meant was increasing the cost of the process to clients – holding settlement discussions at any stage, or not entering into pre-mediation bargaining?

  3. Before the mediation.