Building upon the foundation established over recent decades, The Mediation Futures Project will gather and report upon our best thinking about the future of the mediation field and mediation practice.

Negotiation Advocacy and the Future of Alternative Dispute Resolution

February 2015

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Nathan Witkin

One promising and yet underdeveloped segment of the alternative dispute resolution movement is negotiation advocacy.  Roles such as collaborative attorney and conflict coach are allowing ADR practitioners to enhance their clients’ experience at the negotiation table with communication coaching and a style of advocacy that is cooperative in nature.  This new wing of ADR combines the best and avoids the worst of impartial mediators and legal advocates.  Impartial mediators attempt to bring about understanding and an amicable interaction as the disputants discuss their situation.  However, these facilitators must maintain impartiality and are therefore theoretically limited in the amount of personal assistance that they may provide to either of the disputants.  Attorneys--the popular choice for people seeking assistance with conflict--can provide the personal assistance and confidences of an advocate but are directed by the arena in which they operate to be legally focused and competitive rather than cooperative.  In contrast, negotiation advocates would be able to sit next to disputants throughout the process, coach them on effective negotiation strategies, artfully voice their interests, and attempt to resolve the dispute by conveying their side’s viewpoints in a way that is accepted and understood by the opposing party.

The role of cooperative, negotiation-focused advocate is an appropriate subject in discussing the future of ADR, because it has not been fully realized despite what should be a significant demand.  Though the roles of conflict coach and collaborative lawyer somewhat overlap and show promise for this new role, neither is an example of a pure negotiation advocate.  Conflict coaches prepare their clients for effective negotiation but do not advocate for them at the negotiation table.  Collaborative law is a subset of the legal profession and therefore requires a law license, even though the collaborative attorney is precluded from appearing in court by the disqualification agreement that defines the process.  Collaborative lawyers act as negotiation advocates, but the requirement that both disputants hire licensed attorneys who are financially and ethically comfortable with withdrawing representation if the matter is not resolved in negotiation has limited the application of this process.

The second reason that negotiation advocacy is a fit topic for the future of ADR is the need for this role.  The potential demand for negotiation advocates is seen in the manner in which disputants engage in and resolve their conflicts and also in the current condition of the field of legal advocacy.  Though disputants overwhelmingly approach attorneys with their problems, most of these cases are settled in negotiated agreements rather than litigation in front of a judicial decision-maker.  These trends indicate twin desires for the assistance of advocacy and the control of a negotiated outcome.  Also, field of legal advocacy has experienced a decline in professionalism and increasing problems with attorneys acting over-zealously.  Because negotiation requires a mutual coming together of conflicting sides, this increase in attorney zealousness makes it less likely that they will carry out negotiation settlements amicably and under mutual trust.  This decline in professionalism may be the result of increasing numbers of attorneys working in a given practice area and region--such growth makes it less likely that attorneys will interact repeatedly and thereby have the opportunity to build trust and the motivation to act cooperatively.

Though these indicators show promise for negotiation advocacy, insight into the future of alternative dispute resolution must take into account current limitations on the field and the steps necessary to overcome them.  These inquiries, however, support the continued growth of negotiation advocacy as a viable role for ADR practitioners.

First, an appraisal of the direction in which the ADR field will grow, must analyze any current limitations to growth.  The alternative dispute resolution movement has largely been equated with the process of mediation and the use of impartial facilitators.  Despite the fact that mediation has attracted the attention of the public and the respect of public dispute resolution forums, the process remains underused as people continue to largely take their problems to attorneys.  One contributing factor in this marginalization, and a stand-alone problem within the process, is the limited power mediators are afforded as a result of their impartiality.  Unlike the wise-elder community leaders on which they were modeled, modern mediators are restrained from taking sides on any issue even when doing so could help the overall situation.  As a result, voicing and providing the parties with arguments is not action that is condoned for mediators.  While mediators have developed a variety of methods and skills for enhancing cooperation at the negotiation table, they have not used these skills from the position of an advocate.  The strong association between ADR and impartial facilitation has caused hesitation in implementing roles that involve assisting particular disputants with participating powerfully, effectively, and cooperatively at the negotiation table.  

Because attorneys make up a powerful and significant part of the conflict resolution apparatus, another limitation facing the field is the tendency for attorneys to focus on the law when advocating for people in conflict.  While knowledge of statutes and court proceedings is certainly helpful in evaluating and advocating for clients' rights, many people facing interpersonal disputes and the psychological distress of conflict may not be appropriate for litigation.  Unfortunately, many such people who seek the advocacy assistance of attorneys are turned away for “not having a good case” or, rather, not being in a situation that is appropriate for court intervention.  This does not mean, however, that these disputants are without recourse and that attorneys are powerless to help them.  Attorneys could apply their advocacy skills beyond court proceedings, allowing them to expand their business and offer their clients a greater variety of services and approaches to conflict.

The underlying fears and assumptions that bolster these limitations concern the nature of advocacy.  In the eyes of both ADR professionals and attorneys, the word “advocacy” means zealous advocacy in a court of law.  However, a variety of professionals apply their special knowledge and expertise as advocates in their fields without necessarily acting zealously or practicing law.  Professionals with particular knowledge about a certain trade or industry can advocate for working conditions as union representatives, professionals who know the sports or entertainment market may advocate for talented individuals as agents, professionals who are familiar with a legislature can advocate for people or organizations as lobbyists, financial experts can advocate for clients as tax consultants, and the people with social welfare training can advocate for children as court appointed special advocates.  If the expertise of the mediation-trained professional is in cooperative communication and negotiation, then what is preventing them from applying this expertise as an advocate at the negotiation table?

The problem with applying expertise in cooperation as an advocate is control over the strategy or approach of the other side.  While a dispute resolution professional could offer useful insight and skills to one side of the dispute and how to affectively communicate and cooperate with the other side, if the other side brings a hard bargainer or attorney to the negotiation table, then the assistance of the cooperative advocate would be hindered by the unwillingness of the other side to cooperate.  This is also the reason that conflict coaches do not sit at the negotiation table--if they negotiated settlement across from an attorney these coaches could be found to be engaged in the unauthorized practice of law.

Co-resolution tackles this problem and may thereby allow ADR practitioners to better serve as negotiation advocates.  As the video accompanying this article illustrates, co-resolution involves two negotiation advocates who help opposing disputants but operate as one unit or business.  Because the co-resolvers work across from each other on an ongoing basis, they will have the opportunity and incentive to develop a cooperative relationship.  And because either party may walk away from the negotiation if they feel uncomfortable, the tendency of the co-resolvers to cooperate will be kept in check by their incentive to remain loyal to the assigned disputant.  Thus, co-resolution may allow mediation-trained professionals to serve as negotiation advocates and may play a significant role in the field of alternative dispute resolution.



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Nathan Witkin is a family and criminal defense attorney in Marion, Ohio, and is the author and originator of dispute resolution ideas such as co-resolution, consensus arbitration, interest group mediation, and the interspersed nation-state system.



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