Introduction to Mediation Advocacy
This article titled ‘Introduction to Mediation Advocacy’ is written by Krishnapriya MS and provides an introduction to mediation advocacy. Introduction to Mediation Advocacy The glory of a professional lawyer is always dependent on his ability to get involved in adverse litigation and how much they can stand for their client. Mediation advocacy is a rare niche of law that… Read More »
This article titled ‘Introduction to Mediation Advocacy’ is written by Krishnapriya MS and provides an introduction to mediation advocacy.
Introduction to Mediation Advocacy
The glory of a professional lawyer is always dependent on his ability to get involved in adverse litigation and how much they can stand for their client. Mediation advocacy is a rare niche of law that breaks the stereotype of such a lawyer.
Adverse litigation is a very hasty procedure that requires a lot of time to settle the dispute can take even years. Mediation is hence promoted largely among the legal fraternity but rarely do lawyers agree with it.
People have a prenotion that mediation advocacy cannot solve their problem and lawyers feel it is not technical and creative usually considered as one of the easiest ways to get out of the complexities.
Mediation advocacy is not a complex procedure but still, it requires a lot of understanding of the issue and preparation and should result in a constructive solution as well
I. Role of Advocate in Mediation
Usually, a large number of people believe that mediation advocacy doesn’t require the knowledge or involvement of lawyers and the people could settle matters by themselves, but lawyers play a fair role in negotiating part.
He knows what is best for the client and what is not. The client requires the aid of a trained and prepared lawyer for negotiation otherwise mediation will not help to ensure his interest. Mediation advocacy requires more of a problem-solving approach constructively.
The lawyer along with the client would be prepared to settle the matter constructively or could at least be able to understand the problem in case of a prior suit mediation.
As India had become a signatory in the United Nations Convention on international settlement agreements resulting from mediation (Singapore convention), mediation has turned to be the future of our nation. Hence our country should move forward in the mediation advocacy/ consultancy division.[1]
II. Changing the mindset of the client
Preparation of the mindset of the client is very important before engaging in a mediation process. A lawyer should make the client understand the mode of negotiations that could be expected. The client should be prepared to protect their interest themselves as well along with the counsel.
The client must be interested in the mediation process. The client is the ultimate decision-maker in a mediation process. The client should understand the mediation procedure and should follow the guidelines.
When a client fails to understand the whole process even when there was a higher possibility for the interest to be settled.
There is no necessity that the advocate should be the chief negotiator but the client must be able to understand the pros and cons of his decision in which only a lawyer can help. Mediation is a future-oriented process the client should not ponder around the past. [2]
Principles involved in Negotiation
There are 6 principles of negotiations are being discussed by Walker in his book “Mediation Advocacy” they are:
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- Reciprocation
- Commitment and could consistency
- Social proof
- Liking
- Authority
- Scarcity.
Reciprocation is a technique where the parties speak as they have a certain obligation towards another person who is having a conversation with them and creating a sense of obligation in their mind.
Consistency and commitment: a situation wherein a person acts in furtherance of the acts which they had done earlier. This approach usually makes negotiation more difficult.
Social proof: It is a tendency of people to do what others do. This feature is good enough as we will depend on previous experiences to make a decision.
Liking: we will agree to be in terms with others when we like them, it is an instinct of human beings.
Authority: consulting with people who are authorised will help you to arrive at a better conclusion.
Scarcity: a principle which states that people hold higher value for things that are not readily available than the things which are easily accessible. This factor should be kept in mind while negotiating with another party. [3]
The combined application of all the above principles will result in a better result in mediation. Depending alone on any principle will not give good results for example while having an expert opinion regarding a matter, chances are likely that the experts may get biased towards a particular agenda. Things have to be keenly observed from various angles.
III. Successful Mediation Advocacy
Mediation advocacy can be made successful if certain things are kept in mind while involved in it :
- Using mediation advocate in the early stage of mediation
- Using mediation advocate during the mediation session. Allow the parties to participate actively.
- Full cooperation with mediation lawyer.
- Use an experienced person and address the specific needs to him
- Carefully provide all information to the lawyer.
- Meet advocate before mediation and plan properly
These are steps to the steps to be taken by a client and counsel together before a successful mediation.
A lawyer should explicitly mention the cost and benefit of the mediation process and how it will be helpful to settle the matter forever.
Make the client understand the financial difference between adverse litigation and mediation. No mediation advocate can guarantee success but it will at least help to create a correct picture of the problem before we approach the court.
Mediation is of four different styles in general, it can be
-
- facilitative,
- evaluative,
- narrative and
- transformative.
In the facilitative model of mediation, the parties are the ones who played a major role and the mediator ask questions and understand their interest.
In evaluative mediation, the mediator will come forward and will give some opinions and recommendations as well.
In the narrative form of mediation, the mediator will try to deconstruct things from parties and try to watch the issue from a different perspective.
In the transformative form of mediation, the mediator will empower the parties to recognise the other parties interest.
In mediation advocacy, the advocate should understand such basic principles and should recognise the mode of mediation and act accordingly. [4]
IV. Ethics of Mediation Advocacy
Mediation advocacy is different from adversary litigation the lawyer should be independent but still have to protect the interest of the client in India we don’t have any formally drafted ethical code for mediation advocacy but the American bar association had formulated ethical codes for mediation advocacy too. The lawyer has the right to advise only his client not the other client.
A lawyer can ask his client to refrain from sharing certain information with another party it is not compulsory to have to reveal all secrets. He must stick to the interest of the client and should come forward to take necessary action if the other party violates the agreement.
A lawyer has to be truthful and should not mislead the other party. He has to keep all the information confidential. Confidentiality is the key element in a mediation process. He can use his confidential information to derive a creative solution out of it. [5]
V. Conclusion
Mediation advocacy is a new niche to be explored by the litigators in India. India had now shifted its interest more towards dispute settlement in the last few years as mediation is a time saving and creative problem-solving procedure that settles the entire dispute between the parties in a way, both of them feel justifiable.
The interest of the vulnerable also needs to be protected during mediation advocacy. They may fail to stand for themselves when they become more vulnerable. In such situations, the mediation will not happen in the right sense.
The governments haven’t formulated any detailed code for mediation. We are looking forward to the new bill being introduced and passed before the Parliament which will create a code of conduct and authenticity for the mediation procedure as a whole. It will suggest a smoother mechanism for the enforcement of mediation agreements.
The future of mediation in India also looks forward to the establishment of a mediation council of India. [6]
Advocate has a significant role in the preparation of mediation, planning of negotiations and several other key aspects in mediation when pre-litigation mediation is promoted legally it will hopefully increase the chances in mediation advocacy as well.
Mediation advocacy is still existing as a field of law and many don’t understand the importance of pre-planning for mediation. For a successful mediation to occur people have to be patient enough to understand another side as well as follow the instructions of counsel.
Ethics of mediation advocacy and adversary litigation have a slight difference as the lawyer is supposed to be independent and impartial in mediation advocacy, but still, as in traditional advocacy, he has to stand for the interest of his client in mediation advocacy as well.
References
[1] James L. Greenstone; Sharon C. Leviton; Craig M. Fowler (1994). Mediation advocacy; a new concept in the dispute mediation arena, 11 (3), 293- 299.
[2] James KL Lawrence; Mediation advocacy partnering with the mediator, vol 15: 2 2000
[3] Jonathan R. Vaitll, Mediation Advocacy: Representing Clients in Mediation, 8 Y.B. Arb. & Mediation 333 (2016)
[4] Katina foster, June 2003, A Study in mediation styles: A comparative analysis of evaluative and transformative styles, Available Here.
[5] John w cooley Mediation advocacy NITA Practical guide series, 2nd edition 147 – 151
[6] Centre seeks comments on Draft Mediation Bill, 2021, Available Here.
