My friend and colleague, Daniel Weinstein, said it best when he observed, "In a world in which less than 1% of cases end in verdicts, it is surprising that lawyers prepare elaborately for a trial that will never occur, yet feel that the only preparation required for mediation is a good night’s sleep."
Over the past thirty years, one of the untold secrets among the mediation community is that the quality of mediation advocacy – the ability to present and argue a client's position, needs and interests in a non-adversarial way – generally ranges from fair to poor. It's no wonder, when you consider that formal mediation advocacy training has been predominantly overlooked. What training that does exist is primarily experiential, "on the job" learning. While there are moments of creative thinking and strategic behavior in mediation, there are many missed opportunities when evaluating mediation advocacy.
I often ask myself, “Why didn't this advocate prepare differently for this critical moment, when they have the undivided attention of the decision-makers on the other side? Why can't this advocate visualize the impact of their message or approach on the parties down the hall?” Like many other mediators, I spend too much precious time guiding advocates through challenges that they have predominantly created themselves.
Mediation advocacy training is a crucial step
Although mediation has developed and grown over the past several decades in the U.S., attorney education has remained primarily focused on litigation advocacy. Yet, alternative dispute resolution is here to stay. Mediation advocacy training is now a crucial step toward developing the broadest range of skills for attorneys who are looking to achieve winning results for their clients. For too long, litigation and mediation advocacy have been viewed by many as a binary choice: you were a skilled advocate in one, but not both. This choice is a false dichotomy. Litigation advocates must pursue, with equal vigor, the skills required to develop mediation competency.
I'm fond of telling mediators and lawyers alike that the real danger in life lies in not knowing what you don't know. For many individuals in the world of mediation, this statement couldn't be more indicative of the challenges we face. When we pull back the curtain on mediation advocacy, most attorneys quickly appreciate both the uniqueness of the process and the importance of the skills required to engage successfully
Embracing mediation through better understanding
There is another compelling reason to provide mediation advocacy training for attorneys, one that is especially critical in emerging mediation markets: achieving acceptance of the practice itself. Thinking back to my early years of promoting mediation here in the U.S., attorneys were the most important stakeholder group to engage, while they also put up the most resistance.
Fast forward to recent times. As I teach mediators and assist governments in other countries to successfully implement mediation in their judicial systems, I've come full circle. I'm again confronted by attorneys who resist mediation, based on their fear of the unknown, economic uncertainty or other reasons. Their resistance impedes acceptance of a culture of mediation in their communities.
Assisting local mediators in engaging these attorneys through mediation advocacy training may be the best way to break down their resistance. Mediation advocacy training offers attorneys the opportunity to reimagine their career trajectory. By embracing mediation through better understanding and then building mediation advocacy skills, they can separate themselves from their peers and deliver winning results for their clients.
Earlier this year, in our ongoing efforts to support the development of the mediation community in Rwanda, we offered our first training on mediation advocacy for attorneys. Working closing with the Rwandan Bar Association, we addressed over seventy-five attorneys, educating them on the mediation process and specific skills in mediation advocacy. The result was overwhelmingly positive. We are looking toward replicating this experience in the months ahead, working with attorneys in India, Brazil, Mexico, Zambia and The Republic of Georgia.
We need to formalize and institutionalize mediation advocacy training
At Edwards Mediation Academy, we believe that the long term success of mediation in the United States and other parts of the world depends on the acceptance of mediation, as well as building the attendant skills of mediation advocacy. In pursuit of this goal, it's simply not enough to let learning evolve organically through "on the job" experience. Instead, we must formalize and institutionalize mediation advocacy training for lawyers around the world, if we hope to prepare the mediators of tomorrow. Too many lawyers sit comfortably in the doldrums, waiting for the winds to change. Mediation advocacy training for attorneys will help them learn to adjust their sails.
Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.
"Republished with Permission: The Scotsman, Thursday 10 April 2008" GETTING to Yes is the seminal work on negotiation by Fisher and Ury. First published in 1983, it has been read...By John Sturrock