Ascertain What the Future Holds in Store for Mediation and Advocacy

This paper will describe the relationship between advocacy and mediation, and try to ascertain what the future holds in store for mediation and advocacy. Over the years, mediation has been seen as a promising method of dispute resolution. The concept of directly engaging clients in a confidential exploration of the interests of differing parties in the presence of a skilled facilitator is usually an exciting idea, and the results of such a process often yields pleasantly surprising results.

Mediation focuses mainly on overcoming the barriers to the resolution of differences in opinion. On the other hand, advocacy involves a social conflict or a social issue in which a person or party takes interest in such an issue, and represents or speaks on behalf of another as his or her civil duty. For instance, the fight against poverty can be seen as an advocacy, with the person speaking against the issues surrounding poverty as the advocate. Although an advocate will usually take side with the cause or people that he or she represents, advocates also practice diplomacy during negotiations and instances of representation.

Nowadays, court programs can be found in various courts, which exert various degrees of pressure on parties to mediate under the supervision of the court. As an alternative dispute resolution process, mediation is needed in cases where the disagreeing parties are having difficulties in reaching an agreement. Mediators reconcile opposing ideals and themes which are mutually inter-dependent, and then assemble these themes to arrive at an interpretation that is more acceptable to the disagreeing parties. According to Barsky, “an advocate is an individual or a group of individuals that speak on behalf of other people in the course of a particular social issue or concern in legal terms.” [1] In the past, mediation was seen as a private and voluntary, with a distinctly different flavor from the more aggressive/adversarial activities involved in litigation. This view seems to have changed within the last 5 to 10 years, with mediation becoming increasingly institutionalized.

It has been noted that the most satisfying uses of the mediation process require thoughtfulness that may be a bit abstract and away from the box of advocacy and litigation. Mediation, unlike advocacy, is a neutral process, and involves negotiation between disputing parties with an aim to achieving a resolution that is acceptable to the disagreeing parties. Mediators display diplomatic skills more than advocates, who tend to be more impassioned about the people or the cause that they represent, and this might make diplomacy more difficult. Rather than calling impasse and returning to the litigation path, the mediation process can be used to facilitate an agreed “downstream” program defining and scheduling further steps aimed at breaking those logjams and continuing steps toward reconciliation.

Mediation is a process that is aimed at reconciling disagreements or disputes, and not necessarily for the adjudication of disputes. Mediation results in an agreement and reconciliation between parties, whereas advocacy and adjudication lead to a judgment against one of the sides in a disagreement. Reaching an agreement is very different from securing a judgment in a case. In order to fully reap the benefits of mediation, these differences must be taken into consideration and fully understood, as quickly as possible.

Advocacy in mediation

Presently, the integration of mediation into litigation processes is on the increase, but it seems that a lot of people are still not recognizing the fact that mediation can be considerably different from the typical lawyer-to-lawyer negotiations which are a normal procedure in the build-up to a court trial. This failure to fully comprehend such differences can result to agreements that are not optimal, or even hinder both sides from reaching an agreement at all.

“A properly timed mediation session, however, can serve to accelerate and simplify the process of getting the parties to the point when they can settle intelligently.” [2] Currently, mediation is becoming more and more a court mandated step in the civil litigation process, and nit just a voluntary or private commitment by disputing parties to enter into negotiation. So much so that many Attorneys come to court less prepared, and even without their clients in some cases, expecting that something good will happen. It is now the norm that the advocacy would often take the form of vigorous arguments, instead of the more nuanced advocacy for settlement.

In the case of civil trial mediation, the main objective is to put the parties in a position to choose meaningfully between an acceptance of the best possible settlement option and the continuance of litigation. [3] This type of mediation aims at developing and presenting the most acceptable settlement option available, thereby creating an opportunity to choose a viable alternative to the lawsuit. In order for mediation to be intelligently done, there must be adequate information about the case, and proper appreciation of how the financial, political, or other issues affect the continuation of the case.

It is generally better to time a mediation session early. Although lack of information and aggressiveness on the part of the disputing parties can impede the progress made earlier on in the mediation process, thereby limiting the chances of an early settlement, it is possible to use pre-discovery mediations in determining the work that should be done in order to settle the disagreement. This can lead to a situation in which mediations may have to be planned in a two-phase process.

When one advocates, one campaigns for a particular belief or social issue that one sees as important and therefore worth pushing out into the open for debate and affirmative action to bring about resolutions and results. For example, in the social agency that is Planned Parenthood Advocacy, members have come to join because they believe that informed sexual and reproductive healthcare is essential in American families and protects women, teens and the general society from the negative implications of unwanted and unplanned pregnancies (i.e. abortions, disrupted personal and professional growth, inability of mother/father to look after the child, the child being born to poverty and situations that are not best suited for childhood and the demands that come with it).

Mediation is usually a conflict resolution alternative that is seen as separate from advocacy as mediators ought to be neutral when it comes to negotiating agreements and conflicts. This neutrality inspires confidence between conflicting parties allowing the mediator the needed communication and negotiation room to try and bring about, at best total agreement and if that is difficult, interest-based agreement subject to conditions. But actually, when it comes to issues that affect society, these two positions integrate especially if one takes the grassroots mediation approach where the philosophy is to find a common ground. This is usually the approach that social agencies and the government take considering that ours is a nation of diverse ethnicities and at times, vastly conflicting viewpoints

In mediation, the ‘winner’ is the side that behaves in such a manner that the other party is persuaded to offer up the best and last option that they can agree on without litigation, before any decision to reject or accept is made. In this process, the ‘loser’ is the side that causes the mediation to be terminated without arriving at an offer of the best possible options from the other party in the disagreement.

The deviations in the mediation culture have produced mixed results. At present, an increasing number of cases are being settled privately because of court referrals, and this reduces the work load for the courts and advocates/counsel. On the other hand, this has led to less creativity and less commitment on the part of some mediators and advocates. “Mediation becomes more akin to a court settlement conference, with less client involvement and satisfaction. Many mediators are now entirely avoiding client interaction in joint session, and some spend little time with clients in private caucus. Perhaps it was inevitable that institutionalizing the process to touch virtually every litigated case would result in some loss of quality.” [4]

In the future, there will be many mediation options available to disputing parties, ranging from the quick and cheap settlement conference to testing the waters without a lot of commitment, to creative, well planned and somewhat complex mediation processes. It is important to keep in mind that mediation at its best is not ‘litigation business as usual’, but is a dynamic and flexible process which has much to do with the imaginations of the mediator and the other parties involved in the process.

As the volume of mediated cases and familiarity with the process increase in the future, disagreeing parties must resist the inertial tendency to approach mediation with little imagination. Failure to properly prepare for mediation sessions can lead to missed opportunities to prevent persuasive arguments and alternatives to the opposing party. If the mediator intends to conduct separate sessions involving individual parties, it is vital for the advocates of both sides to ensure that their parties understand the extent of confidentiality that will be put forward by the mediator during these sessions. A good idea is to begin by checking any relevant statute of jurisdiction or mediator confidentiality. If mediation is being done under the auspices of a court program, the advocates are responsible for reviewing any rules that govern such a program, as many programs like this will normally have rules about confidentiality.

Nowadays, most private mediators have agreements in place to mediate explicitly, thereby establishing the mediator’s offer of confidentiality to the disputing sides. Some court programs do not allow such agreements, so it is also important for the advocates to establish the degree of confidentiality protection to be applied for each session of mediation. In some cases, advocates can use the mediator as an ally. For example, advocates to disputing parties and their clients might wish not to divulge sensitive information about the details of their disagreement, so if the advocates are assured about the issue of confidentiality, then the advocates and their clients may consider how best to go about the early stages of the mediation.

The future of mediation

There are various reasons why mediation may be the preferable method of resolving disputes in the future, including cost, confidentiality, control, and the customization of agreements. When mediation leads to an agreement between disputing parties, the process is almost always less costly than opting for litigation of the same issue. Mediation also ensures more confidentiality, as the process generally enables the parties involved to have the opportunity to reach a settlement that is as private as they wish, although there might be restrictions like mandatory reporting laws which may limit confidentiality during meditation.

The disagreeing parties also have more control and a bigger role in the actual negotiation of the agreement during mediation, as is evident in many lawyer-assisted dispute resolution negotiations. This can also help in arriving at customized agreements, as the parties are heavily involved in reaching solutions, which translates into most agreements being tailored precisely to the needs of the disputing parties. Mediation also increases the likelihood of cooperation between the disputing parties, especially in situations where the parties involved may have a continuing relationship.

In the future, it can be expected that many cases will be filed with every expectation that the sides in dispute would reach settlement decisions through mediation or through other court-related alternative dispute resolution procedures, before the case actually goes to court.

The prosecution or defense of a civil right claim is therefore expected to involve much more than simply preparing for trial. Preparation must also be made for the certainty of institutionalized settlement programs that might come quite early in the litigation process. Thus, advocacy in the future must expand to include proficient representation of the parties’ interests in settlement sessions involving mediation.

Mediation and advocacy are essential for ensuring that social support affects social and government policies regarding health care and education or any other collective or individual rights’ concern for a group of people. Advocacy and mediation affect issues of change in issues like gender equality, anti-racism efforts, correction of legal system processes which are based on unfair rules, labor rights, rights of vulnerable populations, elderly, mentally deficient, animal rights, climate and environment care, anti-arms, rights for pro-choice and pro-life

The future of advocacy

Advocacy in mediation is essential as regards provision of dispute resolution services. The continued growth of alternative dispute resolution will probably redefine the roles of trial lawyers and advocates. History has shown that successful mediations are those that are initiated at the right time, with the right individuals or group of individuals who have the required disposition and information necessary for the settlement of the dispute. Such preparatory steps may however affect the effectiveness of negotiations to arrive at reconciliation of cases. Civil lawsuits may involve complex multi-party disputes involving numerous issues and relatively expensive claims and counter-claims. Individual components might also come in useful in cases in which there will be mediated settlement procedures at one stage or the other.

In the future, the amount of time, money and other resources spent on the preparation for mediation, as well as the amount of resources spent on preparations for trial, will be determined by the amount or reward in question, the resources available to the disputing parties, and the nature of the case.

One reality of litigation is that all claims and all defenses arising out of the same facts and circumstances must be asserted in the same lawsuit. The judicial goal here – to avoid multiplicity of suits – is important to the judicial system and must be met. An unfortunate consequence of the rule, however, is that many lawsuits end up filled with peripheral arguments that really aren’t determinative of the central issues between the parties. This tends to expand, rather than narrow, the focus of the trial and drives up the time and cost of an adjudicated resolution. Mediation can serve to eliminate those peripheral disputes by final or interim partial settlement agreements, stipulations to abate certain portions of the trial, or agreements to informally set certain issues aside pending the resolution of the main claims. [5]

In the future, success in mediation will continue to be measured by the ability to get the disputing parties into a situation where they can make intelligent choices between the best available options. At present, as well as in the future, it is important to avoid preconceived absolutes of what must never be conceded or what must be gained during meditation. When parties in mediation become entrenched with positional anchors about what each side should get, there is hindrance of creativity and flexibility, which are vital for successful negotiation. “Many times, despite the best efforts to prepare for every contingency in advance, mediations become stalemated because of insufficient information or lack of agreement on what the facilitated negotiations reveal to be core or pivotal issues of fact or law.” [6]

Conclusion

An advocate according to Barsky, is an individual or a group who speaks in behalf of another person or a particular concern (i.e. a social issue) in legal terms. An advocacy on the other hand is a social conflict or issue where one takes interest and speaks or represents in behalf of as a form of civil duty. For example, fight against poverty is an Advocacy and an Advocate of Poverty is someone who speaks against poverty. [7] An advocate is never neutral – they take the side of the causes or people they represent. They, however practice diplomacy in negotiations and instances of representation.

The mediator, unlike the advocate is neutral in any conflict he or she is involved. To mediate is to negotiate between parties in conflict to achieve an acceptable resolution. Mediators display diplomatic skills. While advocates do they are always impassioned about the cause or the people they represent making diplomacy difficult. Mediation is an alternative dispute resolution and mediators are needed when the parties involved are having a difficult time. Mediators reconcile mutually interdependent but opposing themes and ideals and put together in an interpretation that becomes acceptable to parties in conflict. “It is essential, therefore, that any ground gained in resolving a conflict in mediation be confirmed in writing immediately. Tying down detailed, final settlement terms at the end of a mediation session, however, is not always possible.” [8]

Available time, secretarial services, facilities and the temperament of the parties after a long, grueling negotiation session will often preclude closing a mediation session with a detailed and lengthy agreement. Confirming closure at the conclusion of the mediation therefore might best be accomplished in two steps. Begin with a short, handwritten “bullet point” agreement signed by the parties and counsel to seal the deal at the end of the session. That document can then be followed by more detailed agreement (with all required attachments) prepared by counsel at later date to finalize the agreement. [9] A more Christian and moral reasoning will more often than not elicit positive participation. In other words, integrated advocacy and mediation can achieve positive results despite the challenge of a longer process by taking into account the socio-cultural context of the community they are campaigning in or negotiating for following the grassroots mediation process.

As a structured settlement negotiation process, civil trial mediations are quickly becoming the predominant dispute resolution mechanism. “In the future, mediation of civil trial actions will probably become the process disposing of the vast majority of civil trials that are filed. To remain a central figure in this part of dispute resolution, trial lawyers must be able to perform effectively in the mediation process. Like anything else, this will require careful preparation and planning.” [10]

Mediators, as well as advocates are concerned with issues such as confidentiality and the rights of their clients, but in the future, mediators will probably have additional issues to deal with. Whereas advocates are fighting for the rights of their clients, mediators are working for the best outcome for both parties in a dispute. Mediators have to remain neutral to both sides of the dispute and not be influenced by any personal bias or other people. The Future of mediation and advocacy has been given many predictions. An author for the Examiner paper in Ontario, Canada (Courts Clogged 2002) wrote an article from the judicial side; judges feel their courts are going to be bogged down in the near future by the number of cases that come through their court rooms. Judges have said the congestion comes from a lack of judges, priority child protection cases and lengthy legal arguments due to insufficient mediation and assessment services. Advocacy and support groups have made a point that these issues run risk of delaying the futures of children and their families. Advocacy groups would also like to see an increase of awareness and knowledge to the public of services that are offered and the need of funds or volunteers to be able to offer services to their clients