Advocacy Mediation with the Government - Dispute Resolution Journal - Vol. 61, No. 4
Jeff Senger is Senior Counsel in the Office of the Associate Attorney General at the United States Department of Justice. He oversees civil litigation and mediation matters throughout the department. He has served as a federal mediator for the U.S. District Court and as a civil, family and criminal misdemeanor mediator for the Superior Court in Washington, D.C. He has also served as an arbitrator for the Better Business Bureau and the District of Columbia Bar Association. Mr. Senger teaches negotiation and mediation at Harvard Law School’s Program of Instruction for Lawyers, and serves on the Council of the Dispute Resolution Section of the American Bar Association and the Executive Committee of the CPR Institute. He has testified as an expert witness before Congress. This article is condensed from chapter 5 of Mr. Senger’s book, “Federal Dispute Resolution” (Jossey-Bass 2004). The book can be ordered through Amazon com or from this toll free number: 1-800-225-5945.
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.