The Role Of The Mediation Advocate By Valentino Buoro

In the province of alternative dispute resolution, four
professional career paths stand out. These are those of Arbitrator,
Mediator, Conciliator and Mediation Advocate. Some of these are
already well established in the consciousness of the user public,
despite the tendency for some to still use them
interchangeably.

This is why you still find some members of the public refer to a
mediator as arbitrator. If this was pardonable in the past, recent
judicial developments makes it imperative that a clear
understanding of the distinction between these professionals become
public knowledge, in view of their roles as key actors of the
multi-door courthouse system.

Recall that a fortnight ago in this column we discussed how to
use the services of a multi-door courthouse. It was clear in that
piece that the operations of a multi-door courthouse were
materially different from those of the regular courts. We noted for
instance that the multi-door courthouse can assist you to persuade
a recalcitrant opponent to come to the mediation table. It is
noteworthy to say here that aside referrals from trial courts, a
good number of disputants still exhibit some reluctance to accede
to dispute resolution under the multi-door courthouse systems.
While this may sometime be traceable to lack of familiarity with
the process, others curiously are the outcome of lawyer advice to
the effect that mediation is ineffective and unenforceable.
Concerned about this knowledge disconnect, judiciaries all over the
world have embraced the emergence of a specialist corps of lawyers
trained and accredited as mediation advocates.

A mediation advocate should not regarded in the popular sense of
the term advocacy; that is, a person who campaigns for or merely
promotes the use of mediation. Within the context of emergent
professional use, a mediation advocate is a lawyer trained and
accredited in the art of representing clients at mediation. It is a
globally recognized skill and it’s indeed the newest of the
alternative dispute resolution professions.

Mediation advocates are of great significance to the growing
culture of alternative dispute resolution. They are the first line
of contact between disputants and the justice system. They hold the
aces as to which direction the pendulum of dispute resolution
should swing as between litigation, arbitration or mediation. Just
as between courts and multi-door courthouses, there are clear
distinctions between trial advocacy and mediation advocacy. The
mediation advocate is by training and orientation groomed to
understand that beyond the cold letters of law establishing rights
and obligations of parties, there exists human stories that
materially affect people and organizations in dispute. These are
the true pains which impel parties to seek justice. Regrettably
however, these concerns are often overlooked in the trial justice
system.

Aside the knowledge of law, a mediation advocate is expected to
be deeply grounded in the subject area of dispute. He should be
sufficiently knowledgeable to explore both legal and non-legal
options in the resolution of his client’s case. In its purest form,
a mediation advocate should not accept brief in a subject area for
which he is not professionally competent. This appears to be the
very reason for which non-law professionals such as accountants,
medical practitioners, engineers, real estate practitioners etc.
are allowed to train and practice mediation advocacy in multi-door
courthouses. Their brief would usually be restricted to
representing parties in disputes within the confines of their
professions.

A mediation advocate who has been briefed by client undertakes a
number of strategic steps. The first of these is to screen the
client’s case for suitability for an ADR process. He also requires
to fully understand the case within the legal context of rights,
obligations and legal classification in order to properly educate
his client on the preference for the mediation option. According to
Andrew Goodman, Convenor of the Standing Conference of Mediation
Advocates(SCMA) pre-mediation conference should establish precisely
what outcome is needed, not just in relation to the legal cause of
action or defence, but taking into account the full range of wider
commercial, relationship, personal and emotional interests where
present.

Goodman proposes that one effective way of doing this is to list
out everything the client is interested in achieving and then
prioritizing these by dividing them into categories. He suggests
that the categories may be ranked as ‘needs’ ‘would like’ ‘nice to
have’ or some such. The interrogation of the client’s needs
ultimately unveils his underlying interests for the proposed legal
action.

The client must be instructed to know the importance of the role
which his opposing party plays in the ultimate resolution of the
case. The opponent’s concurrence to proposals or offers in the
negotiation session is what resolves the dispute. Though the
mediator has no adjudicatory powers in the process, he nonetheless
wields considerable influence, particularly along the lines of his
mediatory skills. The icing on the cake that mediation literarily
represents is that aside the speed, confidentiality and efficient
cost of the process, the client should know as of fact that
mediation agreements are now enforceable as consent judgment of all
courts in Nigeria.

Culled From Sun

In the province of alternative dispute resolution, four
professional career paths stand out. These are those of Arbitrator,
Mediator, Conciliator and Mediation Advocate. Some of these are
already well established in the consciousness of the user public,
despite the tendency for some to still use them interchangeably.

This is why you still find some members of the public refer to a
mediator as arbitrator. If this was pardonable in the past, recent
judicial developments makes it imperative that a clear
understanding of the distinction between these professionals become
public knowledge, in view of their roles as key actors of the
multi-door courthouse system.

Recall that a fortnight ago in this column we discussed how to
use the services of a multi-door courthouse. It was clear in that
piece that the operations of a multi-door courthouse were
materially different from those of the regular courts. We noted for
instance that the multi-door courthouse can assist you to persuade
a recalcitrant opponent to come to the mediation table. It is
noteworthy to say here that aside referrals from trial courts, a
good number of disputants still exhibit some reluctance to accede
to dispute resolution under the multi-door courthouse systems.
While this may sometime be traceable to lack of familiarity with
the process, others curiously are the outcome of lawyer advice to
the effect that mediation is ineffective and unenforceable.
Concerned about this knowledge disconnect, judiciaries all over the
world have embraced the emergence of a specialist corps of lawyers
trained and accredited as mediation advocates.

A mediation advocate should not regarded in the popular sense of
the term advocacy; that is, a person who campaigns for or merely
promotes the use of mediation. Within the context of emergent
professional use, a mediation advocate is a lawyer trained and
accredited in the art of representing clients at mediation. It is a
globally recognized skill and it’s indeed the newest of the
alternative dispute resolution professions.

Mediation advocates are of great significance to the growing
culture of alternative dispute resolution. They are the first line
of contact between disputants and the justice system. They hold the
aces as to which direction the pendulum of dispute resolution
should swing as between litigation, arbitration or mediation. Just
as between courts and multi-door courthouses, there are clear
distinctions between trial advocacy and mediation advocacy. The
mediation advocate is by training and orientation groomed to
understand that beyond the cold letters of law establishing rights
and obligations of parties, there exists human stories that
materially affect people and organizations in dispute. These are
the true pains which impel parties to seek justice. Regrettably
however, these concerns are often overlooked in the trial justice
system.

Aside the knowledge of law, a mediation advocate is expected to
be deeply grounded in the subject area of dispute. He should be
sufficiently knowledgeable to explore both legal and non-legal
options in the resolution of his client’s case. In its purest form,
a mediation advocate should not accept brief in a subject area for
which he is not professionally competent. This appears to be the
very reason for which non-law professionals such as accountants,
medical practitioners, engineers, real estate practitioners etc.
are allowed to train and practice mediation advocacy in multi-door
courthouses. Their brief would usually be restricted to
representing parties in disputes within the confines of their
professions.

A mediation advocate who has been briefed by client undertakes a
number of strategic steps. The first of these is to screen the
client’s case for suitability for an ADR process. He also requires
to fully understand the case within the legal context of rights,
obligations and legal classification in order to properly educate
his client on the preference for the mediation option. According to
Andrew Goodman, Convenor of the Standing Conference of Mediation
Advocates(SCMA) pre-mediation conference should establish precisely
what outcome is needed, not just in relation to the legal cause of
action or defence, but taking into account the full range of wider
commercial, relationship, personal and emotional interests where
present.

Goodman proposes that one effective way of doing this is to list
out everything the client is interested in achieving and then
prioritizing these by dividing them into categories. He suggests
that the categories may be ranked as ‘needs’ ‘would like’ ‘nice to
have’ or some such. The interrogation of the client’s needs
ultimately unveils his underlying interests for the proposed legal
action.

The client must be instructed to know the importance of the role
which his opposing party plays in the ultimate resolution of the
case. The opponent’s concurrence to proposals or offers in the
negotiation session is what resolves the dispute. Though the
mediator has no adjudicatory powers in the process, he nonetheless
wields considerable influence, particularly along the lines of his
mediatory skills. The icing on the cake that mediation literarily
represents is that aside the speed, confidentiality and efficient
cost of the process, the client should know as of fact that
mediation agreements are now enforceable as consent judgment of all
courts in Nigeria.

Culled From Sun