“Advocacy is a conscious act of support, expressed by speaking or writing on behalf of another person, an idea, a cause or a policy.”
Advocacy involves problem-solving approach designed to protect the interests and rights of an individual or a group. There are different kinds of advocacy, one of them being legal advocacy.
Legal advocacy encompasses a range of abilities including case analysis, drafting, making oral submissions, cross-examining witnesses and being able to put forward a strong and persuasive case. In short, legal advocacy is a skill. And, it is often associated exclusively to litigation. We develop this skill when we start working with a senior as an apprentice, till the time we are confident enough to handle the cases independently. This training could take a year, five years or even more.
As lawyers, we are accustomed to the adversarial processes, and consider ourselves duty-bound to fight for the client’s rights and needs. Through acquired knowledge and experiences, we often disregard our innate ability to resolve disputes through dialogue. When disputes escalate into court battles, there is often little scope for bridging the gaps in communication, therefore leaving no room for collaboration.
But times are changing. With the court infrastructure bursting at seams there is a natural lookout for alternatives to resolve the disputes to contain the docket explosion. In commercial contracts there is often times a clause included for arbitration to resolve the disputes. Arbitration is private adjudication. The representing advocates are able to use the same skills they use for litigation. Arbitration is expensive and the award is appealable involving more time. It is perhaps right to say, that arbitration is not the worthy ‘alternative’ which the business community is looking out for in order to resolve commercial disputes in a cost and time effective manner and enhance the ease of doing business.
The recent trend is to encourage collaboration and dialoguing for dispute resolution through Conciliation and Mediation. Mediation being facilitated negotiation allows parties to self-determine their own sustainable solution in the presence of a trained neutral. This creative and tailor-made solution is reached by the parties having understood the interest of the other party(ies) in a time, energy and cost effective manner. The Mediation movement is gaining momentum – this is visible as the legislature has proactively included mediation/conciliation as an alternative to litigation in commercial and personal laws such as Companies Act, Consumer Protection Act, RERA, Family Courts Act etc.
The amendment to S.89 of CPC has ensured that states have Mediation centres attached to the respective High Court and District Courts. There are also regular mediator trainings conducted for awareness and capacity building.
A misunderstood role?
Advocates often think that they have no major role to play as mediation is a party centric process. It is my experience that junior lawyers who are still training are made to represent which results in clients being not prepared to have a meaningful negotiation at the Mediation table. There seems to be an innate assumption that clients will think their case is weak or will underestimate the confidence of the advocate to deal with the case, if Mediation is recommended.
At this juncture I must forcefully set aside this as a wrong assumption emanating without any basis. Suggesting Mediation is often a sign of an in-depth understanding of the matter and interest of the client – it is a strategic decision making in the lifecycle of a dispute. The assurance that the client will be supported throughout the Mediation with good preparation and if resolution is not reached the advocate will take up the case in litigation at the appropriate forum with vigour, to my mind, will gain the respect of the parties.
The advocate can negotiate his fees . The parties will be ready to pay the counsel for his efforts if the resolution is arrived in mediation with no further disputes. After all what the parties need is quick resolution with no further proceedings. This could also lead to recommendations in favour of the advocate in his/her circle.
Mediation advocacy requires a different skill set than litigation/arbitration which are adversarial processes. Advocates need to train themselves in collaborative dispute resolution methods to effectively represent their clients at the Mediation table.
Abraham Maslow said “if all you have is a hammer, everything looks like a nail”. With collaborative dispute resolution tools, an advocate will be empowered to look at a dispute differently and use the collaborative means to assist their clients come up with creative and sustainable solutions.
Mediation advocacy – a must in law schools
The Bar Council of India in  has made it compulsory for law students in India to study Mediation. This should include mediation advocacy training. A good mediation advocacy training should help lawyers to understand and uncover the value of dialogue, appreciate the dispute in detail to understand the needs and interests of their clients and explore solution options in a creative way.
It is my belief that equipped with good mediation advocacy trainings, our lawyers will be able to suggest mediation to their clients at the strategic point in a dispute lifecycle, effectively represent them in Mediations and assist their clients to negotiate to their advantage, understand the perspective of the other side and to work towards a win-win solution.
Creating a Context For over 27 years I have been a mediator, facilitator, trainer and user of many problem solving models. During that time, I have looked for models and...By Timothy Germany