By and large, the attorneys with whom I am privileged to mediate are good at what they do. They persuasively advocate for their client, they give their clients reasonable advice, and they achieve positive results at mediation. Each brings to the table his or her own personal style and approach. However, there are some common denominators in what I see as effective mediation advocacy. The traits of effective advocates reflect an understanding of counsel's role and the value of the opportunities mediation presents. In our blogs, seminars, and webinars, we have spoken, among other things, of the need to prepare and to listen.
What perhaps is not as commonly discussed is the value of being authentic. Someone who is forcing a tone or attitude will usually fail to do it effectively. Flexibility is also a key attribute. Mediation is a process that takes time, energy, and sometimes takes unpredictable or frustrating turns. The advocate who can manage the downs as well as the ups of the mediation process will be an advocate for the process as well as for the client's position. This will, in turn, create willingness to go down potentially helpful paths that may not have been the advocate’s first choice.
A flexible and open mind will help find ways around barriers when necessary. The flexible advocate can explain why the client should consider things that the client may be reluctant, if not resistant, to try. Effective advocates also are mindful of the need to make concessions and to not expect capitulation without something meaningful in return. Finally, experience speaks volumes when it allows the advocate to tailor what he or she presents in mediation. The skills that make effective advocates are like any other; they derive from an individual's strengths and personality, and get better with experience and practice.
Richard Lord is a shareholder mediator at the firm of Upchurch, Watson, White and Max.
