Being an advocate at a mediation requires a different approach and different skills to being an advocate at a trial or other hearing. The advocate is not there:
- to convince a judge or jury of his/her client’s case
- to present evidence, examine his/her client and witnesses and cross-examine the other party and his/her witnesses
- to make legal submissions to a judge (although s/he may have to advise the client about his/her legal position)
- even to make speeches (except to a limited extent).
The advocate is there to assist the client, if possible, to reach a settlement with the other party which is acceptable to the client. The approach at a mediation is to enable the clients to work out the common ground between them and to discover the agreement that they want and are content with. A mediation should be “client driven”.
This is assisted by the advocate who is proactive before and during the mediation by:
- establishing with the client what s/he want to achieve from the dispute (which may differ from the remedy that could be obtained in court)
- advising what can realistically be achieved, bearing in mind the strengths and weaknesses of the client’s case and the risks of proceedings with the court case
- advising what offer to make to the other side
- drafting the opening statement for the opening joint session (often called the Mediation Position Statement or MPS)
- establishing with the client whether s/he wishes to speak during the joint opening session (bearing in mind that this session may be the only occasion when the advocate and his/her client are addressing the other party directly and so the only occasion to enable the other party to understand the client’s case and be persuaded by the client and his/her advocate).
After the joint opening session, the advocate continues to assist the client by:
- advising whether to accept the other side’s offer(s) and what counter-offer(s) to make (probably in private session)
- drafting the settlement agreement (if achieved)
As the mediator will have emphasised the purpose of the mediation is to achieve a settlement. Bearing this in mind, the advocate and, indeed, the client would be well-advised to:
- present calmly and politely
- avoid a confrontational or hostile manner
- use clear, non-technical language offering explanations where appropriate
- keep to the facts without over-emphasis
- respond to the other side only as necessary and briefly
The advocate’s approach at a mediation should be that of seeking a resolution in the client’s best interests and being adversarial can obstruct this objective. This can seem difficult when an advocate wants to protect the client’s position but with practice advocates may be surprised at how adaptable they can become.