Ineffective Advocacy in Mediation

  • December 05, 2018
  • Marc Bhalla

In my earlier article, Effective Advocacy at Mediation, we explored ways that legal representatives can effectively participate in mediation on behalf of clients. Further consideration of good mediation advocacy can include learning from mistakes. Indeed, a review of some common, ineffective approaches to mediation offers opportunities to better understand the type of behaviours to avoid at mediation, and why.

Doing All the Talking

Good mediators do not assume to know everything about the parties to a dispute and refrain from passing judgment or drawing conclusions as to what may be a good outcome for them. Lawyers, on the other hand, are often trained to do just that. Whether it be in rendering a legal opinion, assessing the quality of another party’s position or representing a client in an adversarial setting, the role of the legal representative is often to offer what they feel is the most appropriate - or just - outcome to a situation. 

Some aspiring mediators with a background in law have a tendency to draw their own conclusions as to how a dispute should be resolved and focus on pushing parties toward the settlement option that they consider to be best. While ADR purists may take offence to this approach, the real downfall of it in practice is that assumptions are made that risk missing opportunities to uncover additional information that can be utilized to help build better outcomes.