At Norling Law, we are passionate about providing our clients with a problem-solving approach to solving legal issues. We use our problem-solving skills in serving our clients on a daily basis.
This article discusses skills required by mediation advocates from Dr Grant Morris and Annabel Shaw’s commentary (A to Z of New Zealand Law — Alternative Dispute Resolution — Mediation (online ed, Thomson Reuters)).
Parties often have mediation advocates in commercial mediations. Mediation advocates are the representatives who act on behalf of the parties in a mediation. While mediation advocates are usually lawyers, different advocacy skill sets are required.
The adversarial approach
It is common for mediation advocates to adopt the adversarial approach. This is because lawyers are used to litigation and being focused on rights rather than interests. This hinders effective mediation and is not beneficial to the clients.
Another reason why the adversarial approach is commonly used by mediation advocates is because statutory regimes govern a lot of mediation in New Zealand and mediation is often considered to resolve civil legal claims once they have been commenced. For example, a lot of commercial mediations happen as part of the litigation process. In other situations, clients may expect their lawyers to take an adversarial approach.
Some view that mediation advocates who are lawyers prefer the adversarial approach because of economic reasons. This is because mediation usually reduces future disputes and consequently legal fees.
However, it is important for lawyers to remember that rule 13.4 of the Conduct and Client Care Rules provides that a lawyer assisting a client with the resolution of a dispute must keep the client advised of alternatives to litigation that are reasonably available to enable the client to make informed decisions regarding the resolution of the dispute.
Mediation advocacy skills
It is important for mediation advocates to have knowledge of the process. Having knowledge of the mediation rules, ethics, contractual obligations and the law relating the subject matter is also important.
Preparing before the mediation process is essential. Mediation advocates should know the issues and facts well. They should adopt a mediation advocacy approach as they will be the ones that influence the clients’ approach to mediation.
Mediation advocates should also help clients identify their interests and needs and prepare an explanation of the client’s perspective and desired outcome. They should prepare the clients so they can respond to unexpected situations and emotions and assist clients identify possible results by undertaking a risk assessment. They should also encourage their clients to actively participate in the process.
Mediation advocates require other skills in addition to those that are required in an adversarial role. These include communication skills, relationship management skills, ability to build rapport, emotional competence, ability to be persuasive, advanced negotiation skills and problem-solving skills.
Ways to increase mediation advocacy
Because the mediation advocacy approach results in better outcomes for the clients, it should be encouraged to mediation advocates. Mediation education should be encouraged to the legal profession to increase awareness of the mediation advocacy approach.
Educating clients and the wider community about mediation can be another way to increase awareness. This can include teaching dispute resolution skills to the wider public.
Conclusion
The adversarial approach is used excessively even though it is not beneficial to the clients. The importance of mediation advocacy should be promoted, and awareness should be increased to improve the efficacy of mediations. This will allow the parties to reach quick and affordable resolutions while preserving relationships as well.
Clients should ensure that they engage experienced mediators and mediation advocates who encourage the mediation advocacy model. Mediator skills are discussed in our previous issue.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues.
We offer professional, independent, and impartial mediation services to users in a dispute. Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and mediation advocates, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, understands the importance of the mediation advocacy approach and regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
Brent is the Director of Norling Law. He has a wealth of experience in the District Court, High Court, Court of Appeal and Supreme Court. Brent is passionate about negotiating favourable outcomes for his clients and able to implement this in his daily negotiations.
Alice is a senior solicitor at Norling Law . Alice has regularly appeared before the Tenancy Tribunal, District Court and High Court of New Zealand.
Alice is fluent in English, Farsi and Azeri.
Wendy has over 20 years’ experience in civil litigation in New Zealand with a main focus on construction, insolvency and debt recovery and security enforcement.