Mediation Advocacy: the art of strategy

Representing and advising clients in a mediation process – a new practice area for legal representatives.  Mediation Advocacy is the technique of strategically presenting a client’s position, needs and interests in a non-adversarial way, and in recognizing that the negotiated outcome to a dispute is usually more flexible, satisfying and sustainable than an order imposed by a court or other tribunal.

Written by Michelle Posemann, Advocate of the High Court of the Republic of South Africa, for LexisNexis South Africa.

[Durban, 02 June 2020]

With mediation becoming formally entrenched in High Court practice through the introduction of Rule 41A, legal practitioners will need to be equipped to represent their clients effectively within this new arena.

Mediation Advocacy is the technique of strategically presenting a client’s position, needs and interests in a non-adversarial way, and in recognizing that the negotiated outcome to a dispute is usually more flexible, satisfying and sustainable than an order imposed by a court or other tribunal.

Effective legal representatives distinguish between advocacy in mediation and advocacy in litigation and achieve much better results from mediations than those who do not make this important distinction.

As we evolve as a legal community in using mediation effectively as a dispute settlement tool, we will each develop our own strategy and style of mediation advocacy. Some of the considerations will be:

• How to select the right mediator and do you let the other side choose?
• What to include in the mediator’s brief/opening statement;
• How to prepare your client for the mediation, ensuring that they understand the process and what their role will be;
• How best to handle the weaknesses in your case at the mediation;
• Identifying the right participants;
• Objectively evaluating the best and worst possible outcomes and other potential scenarios as potential solutions, and discussing these with your client;
• Assessing what documentation or reports to use;
• Whether there is a tactical role for apology or acknowledgement of wrongdoing.

The considerations are many and the responses may differ for each matter. What is important is that representatives appreciate the necessity of a strategic approach and afford each dispute the careful planning and preparation that it warrants.