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Much has been made within the past several years of the lawyer’s role in mediation. Often, the discussion centers on the concept of advocacy in mediation — that is, the lawyer undertaking the role of the client’s advocate during, and as part of, the mediation process. Law schools offer well-subscribed classes in mediation advocacy. Regional and national competitions judging advocacy in mediation are annual events. But if you really stop and think about this within the context of our legal culture, the notion of advocacy carries with it some baggage, a certain connotation, which, in my estimation, can render it rather maladroit within the mediation forum and potentially at odds with the goals of mediation. It is, therefore, a concept we need to refine and redefine to better serve the needs of clients and properly promote the goals of ADR. To a certain degree within our society and, even more so, within our legal culture, the concept of legal advocacy is in many ways linked to the concept of litigation. The “zealous advocate,” the “hired gun,” or, heaven help us, the “shark” metaphors for lawyer advocates ring to varying degrees distressingly dissonant when defining an effective role for lawyers within the mediation process. What we accept, or concede, as the norm for litigators, is not only wholly inappropriate, but even more importantly, is completely ineffective for problem-solvers. Yes, problem-solver, for that is really the essence of effective mediation advocacy. What does counsel need to know, what does counsel need to do, to resolve this matter in a way that not only satisfies the client, but is acceptable to the other party as well. Your lawyer, in the role of settlement counsel, becomes your personal negotiator-conflict resolution specialist. A horse of a different color, indeed. Stop and think about it some more, especially within the context of collaborative divorce, and we get an even better understanding of just how different the color is. Part of the paradigm shift so often alluded to in collaborative divorce or collaborative law training deals with a complex shift from lawyer as hired gun to lawyer as conflict-resolution specialist. Lawyers who take part in collaborative law processes understand and acknowledge, but are not misled by, their role as advocates. Instead, collaborative lawyers focus on working with their clients to enhance understanding, foster communication and create options and solutions that both parties can consider equitable. Advocacy in mediation, like advocacy in collaboration, does not take place within an adversarial arena. It’s not about doing battle, it’s not about winning and losing, and it’s most certainly not about extracting a pound of flesh. What, then, is it all about? How do lawyers properly assess their roles in mediation? How does this assessment impact their perceptions and their clients’ perceptions of advocacy? How does it impact the notion of effective advocacy within the mediation process? How to work toward successful resolution? It seems useful to start at the very beginning in approaching these questions, that is to say, begin by assessing and determining the skills needed to effectively represent one’s client within the mediation process. These skills are decidedly more generic than client-specific. Although the goals, needs and concerns, not to mention the personality types, of the parties are extremely relevant in shaping our approach to the clients, effective advocacy within mediation has at its core some fundamental principles. A willingness and ability to listen, an understanding of the dynamics of conflict and knowledge of the law, both in theory and in practice, best serve everyone at the table. A focus on communication and collaboration, when coupled with considerable knowledge and careful consideration, sets the perfect backdrop for highly effective representation, and, therefore, for successful advocacy. In mediation, the best advocate will be far more concerned with winning parties over than with winning. Advocacy based on ascertaining and communicating the client’s needs and interests rather than their positions, advocacy based on exploring and encouraging realistic expectations, advocacy based on working together with “opposing” counsel and the mediator to create options and solutions that work for all parties, this is the advocacy that will enable the parties and their attorneys to successfully reach the finish line, resolution in tow. Frances Z. Calafiore is a Hartford-based attorney and mediator. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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