Mediation, obviously, is not “new.” Lawyers have been mediating cases for many years and courts in nearly every jurisdiction have mediation programs. Yet, where “mediation advocacy” is concerned, practicing lawyers encounter new and ever-increasing challenges as a result of the extensive attention that has been devoted to mediation theory and practice. Those challenges, in a nutshell, have arisen because the study of mediation in our law schools has evolved to a point where: (1) increasingly young lawyers are entering the profession with a “dispute resolution” vocabulary that is not necessarily shared or universally accepted among established, veteran practitioners; and (2) simultaneously the ethics and meaning of “advocacy” are evolving and changing to accommodate non-adversarial, collaborative processes of dispute resolution.
As a case in point, consider the relatively recent emergence of the “Representation In Mediation Competition” for law students sponsored by the American Bar Association Section of Dispute Resolution and various law schools throughout the country. According to the rules and instructions for this competition, as of August 2011): “The judging criteria are designed to reward those participants who use an effective combination of advocacy skills and a problem-solving approachin the mediation.” (Emphasis added.)
