Mediating With Advocates

Isn’t it reassuring knowing you have someone in your corner to advocate for you?  Have you ever wondered what the other side thinks, feels, and perceives about that advocate.  An advocate can be anyone from a family member, personal representative, union representative, attorney, management official, etc.  There are many myths, realities, and debates in regard to benefits versus disadvantages of mediating with advocates. 

I have heard many debates over these myths and realities and want to share some and then discuss how advocates can add value to the process, share tips for working with advocates, talk about potential challenging or problem situations with advocates, and lastly some parting suggestions for maximizing the interaction with advocates.  As a mediator being armed with tools and useful information will aide in not becoming overly worried when you find participants to the process plan on having an advocate/representative present during the mediation.

• Myth: Advocates argue positions rather than offering solutions
• Reality: Advocates enhance likelihood of settlement

• Myth: Advocates challenge the mediator’s authority
• Reality: Advocates respect the process

• Myth: Advocates showboat for their clients
• Reality: Advocates bring objectivity to their client’s causes

• Myth: Advocates hinder the process
• Reality: Advocates enhance the process

So you may be asking yourself how advocates truly add value to the mediation process.  There are numerous ways that come to mind but for sake of brevity I will share these:

• Speed discovery
• Help parties prepare for mediation
• Reality test parties before mediation
• Serve as buffers between parties
• Help develop options for settlement
• Help control emotions
• Bring objectivity that parties may lack

There are some key considerations that prove helpful to the process when working with advocates.

• Make them feel welcome
• Recognize them in opening statement
• Direct comments to them as well as parties
• Consider caucusing with advocates alone
• Make them look good to their clients
• Look to them for options and proposals
• Involve them in drafting settlement agreement
• As mediators we have probably all had that “Challenging” Advocate to deal with and if you have not you are among the fortunate ones, but here are some tips I learned over my mediation career that deal with different situations so consider these for your tool kit.
• Advocates hostile to the process
  • Explain process carefully—underscore voluntary nature and invite their cooperation
  • Explain the advantages of a mediated resolution over other possible outcomes
  • Ensure they understand the valuable role they play in the process
  • Caucus individually to explore basis for hostility
• Advocates hostile toward each other
  • Explore the causes of hostility
  • Never scold or berate an advocate in front of the other
  • Use caucuses instead of joint discussions
  • Don’t caucus with just the two advocates
  • Don’t invite advocates to leave mediation for this reason
• Advocates who take extreme positions and hold them “too long”
  • Reality test likelihood of settlement
  • Reality test alternatives to mediated settlement
  • Reality test advocate’s understanding of client’s interests
  • Clarify your understanding of client’s interests
  • Explore other options
  • Use caucus with advocates to get one to reality test the difficult one
• Advocates who want to expand the mediation
  • Assure him/her that those concerns can be addressed at another time
  • Consider whether the advocates can agree on a future meeting or method of addressing the other concerns
  • Reality test the impact of this on the success of the current mediation
  • Reality test the cost of the failure of the mediation
• Advocates to whom you react negatively
  • Remind yourself of the value of your neutrality and the benefits of a mediated resolution of the dispute to the parties
  • Mentally test the reasons for your reaction
  • Mentally test your ability to serve as a neutral third party and, if you can’t serve in that capacity, withdraw from the process. Remember to do no harm to the process!

In the event you have had previous contact with an advocate and make sure to always disclose previous contact with an advocate (and a party).  Also, assure the other advocate (with whom you’ve had no contact) that you’re looking forward to working with him/her too.  Make a concerted effort to be sensitive to equitable treatment of both advocates to avoid a perception of partiality.

In summation of the mediating with advocates’ journey I share some parting pearls of wisdom.  Remember, the advocate is not your enemy and they can help with coping with difficult or unreasonable issues, demands, and behaviors.  Never surrender your role as a neutral to an advocate because as the mediator you control the mediation process.  A few other considerations include:

• Have initiator or advocate clearly define their role at the beginning of the mediation
• Never embarrass an advocate
• Stress active listening and neutrality of all participants

Lastly, by capitalizing on an advocate’s role it can enhance the outcomes of the mediation for all participants and leave a positive impression of the mediation process and experience.

                       

Steven Goldman

Mr. Steven C. Goldman is currently a Department of Veterans Affairs Certified Mediator based in Saint Petersburg, Florida.   In this position, he mediates internal VA employee complaints of unlawful discrimination and harassment claims to include workplace and interpersonal issues as well as provides advice and ADR services to internal and… MORE >