MEDIATION THAT WORKS, PART I: DON’T BE AN ADVOCATE

November 13, 2012 § Leave a comment

This is Part I in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

DON’T BE AN ADVOCATE

What are the “to dos” of being an effective counsel in a mediation setting?

As lawyers, we have been taught advocacy, and advocacy has a part in mediation. But zealous advocacy does not.

Instead of advocating for our client in a mediation setting, step back and consider why our client has chosen to mediate (or why the judge has demanded we mediate) and, within those parameters, how we can be most effective.

Mediation is a different animal from litigation and we must recognize this in order to be effective for our client. In many ways, becoming an effective counsel in a mediation setting is a paradigm shift. In our heads, we must see our client and the opposite party as joint problem-solvers, not adversaries. We must coach them to work together to reach a wise and workable decision. We must encourage them to be open about their interests and look for win-win opportunities.

This is difficult. It is not in our adversarial nature to lead our client to such rational behavior. And it certainly is not the mindset of the client during the course of a lawsuit. But we must lead our client to rational behavior, sensitive behavior and nuanced attention to detail in order that we, together – client and attorney – can get the best result in mediation.

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