Originally from Dispute Resolution Journal

Lawyers must adapt their style of advocacy to the type of proceeding in which they are involved. Litigating in a mediation setting is unproductive. In this condensation from the book, Federal Dispute Resolution, Jeff Senger shares his knowledge of advocacy techniques necessary to mediate with a government party.

Advocacy in ADR is very different from advocacy in other settings. Parties experienced with trial adjudication are accustomed to attacking their opponents in open court, so they adopt a similar aggressive style in ADR. Rather than helping to settle the case, these approaches usually backfire: the party being attacked reacts by becoming defensive and even less likely to cooperate in a resolution.

Participants should recognize that their goal in ADR is to persuade rather than to defeat. Because both sides must agree to any settlement, they need to work together to ensure everyone is satisfied.

Nevertheless, the parties are involved in a dispute and by definition have adversarial interests. Although it is useful to take a collaborative approach, parties should not lose sight of the need to protect their individual interests. This tension makes it vital for them and their representatives to be purposeful in ADR.

Many participants arrive at an ADR session and simply react to whatever happens. This is a mistake. Because a result reached in ADR is just as final as a verdict delivered by a jury, proper advocacy requires that parties develop a strategy to advance their interests in ADR and then implement it. As used here, “ADR” refers primarily to mediation, which is used most commonly in the government.