The Family Mediation Pilot

July 29, 2013 at 3:43 PM

Tips for effective advocacy

Published in The Family Advocate June 2006

We family lawyers are used to keeping our mouths shut in mediation conferences chaired by judges. That is because the judges tend to take it upon themselves to cajole the parties into agreement. The role of counsel for the parties is often limited to formulating the detail of the settlement, along the lines broadly proposed by the judge.

It is very different under the pilot mediation scheme underway in North Shore, Hamilton, Porirua and Christchurch. Under this scheme, which involves private mediation, advocacy is very important and often very effective. True mediation, being a hard headed negotiation process, enables lawyers to demonstrate their knowledge and skills.

I have been the mediator in about 30 pilot mediations. The average duration of each mediation has been about 3 ½ hours. Here are my tips to advocates for the parties, based on that experience and my more general mediation experience. Many of these tips will apply equally to lawyers for the children, but their role is different, and I will address it in another article.

You will be a more effective advocate by incorporating the following points when representing your client in the family mediation pilot:

  • Prepare your client for the mediation. Encourage them to be positive and open-minded about the process and the outcome, despite past negotiation failures and frustrations. Warn them that the process will be challenging and exhausting. Suggest that they eat well beforehand.
  • Have faith that the mediator knows what he or she is doing.
  • Be supportive of the mediator. If you wish to query or challenge what the mediator is doing, do so in private. Be patient. Let the mediation process unfold in its own good time. Sometimes it is helpful or necessary for discussion to apparently go around in circles or apparently go nowhere. There is sometimes a real danger in "going straight to the point". Attempting to short-circuit seemingly "off the point" discussion may only serve to prolong it.
  • When relating to the opposing party, be less stiff and formal than you tend to be in the courthouse setting; friendliness can be disarming
  • As a general rule, talk more in the latter stages of the mediation than in the initial stages; this will help your client find his or her own voice and avoid the opposing party quickly writing you off as an interfering loudmouth.
  • If your client has difficultly from the outset in explaining his or her own case without your help, articulate the case as if you are an interpreter, rather than appearing to express your own views which happen to coincide with those of your client. This avoids the opposing client thinking they are negotiating with you rather than your client. It is important to avoid your client thinking that you, rather than they, are responsible for resolving the dispute. Use phrases like "Janet has told me that what really concerns her is..." or "I think where Dylan is coming from is...". Then you might ask "Have I got it right Dylan?".
  • Avoid undue criticism of the other party. Instead, focus on the needs and concerns of your client. For example, avoid saying to the opposing party "You are appallingly unreliable in keeping to contact times". But instead say, "My client really needs to know when contact will occur so that she can plan her week". This approach does not annoy or humiliate the other party. Don't back them into a corner. Instead, maintain a constructive focus.
  • Adopt the same style and negotiation advocacy that you would use when writing a good legal letter. Deliver a powerful punch by making points which are seemingly inarguable, expressed in a clear, concise, polite and matter of fact tone. You should quietly but firmly expose the strengths of your client's case and the weaknesses of the opponent's case. Understated strength, not hectoring, will render the opposition more malleable to your client's proposals.
  • Just like a good criminal defence lawyer, continuously assess the strengths and weaknesses of your client's case with dispassionate objectivity. Use your assessment to inject realism into the negotiations, both on the part of your client and that of the opposing party.
  • When assessing whether your client should settle up in a particular way, compare that proposal with both the worst and best outcomes your client could achieve were the mediation to end without agreement. Your client might get a better deal in Court, or they might not. A proposal may not be ideal, but all things considered, it may be prudent for your client to accept it.

Category: Family Disputes