Some Guidelines for Effective Advocacy in Mediation - Chapter 13 - AAA Handbook on Construction Arbitration and ADR - Third Edition
Howard D. Venzie, Jr. is a Principal of Venzie, Phillips & Warshawer, Philadelphia, where his practice focuses on construction litigation and alternative dispute resolution. His experience in construction litigation includes all types of contract claims and disputes involving the construction of public and private projects. He is the former Co-Chair of the Commercial Arbitration and Mediation Committee of the Pennsylvania Bar Association and is a member of the American Bar Association's Forum Committee on the Construction Industry, the Construction Committee of the Litigation Section and the Committee on Fidelity and Surety Law of the Section of Tort and Insurance Practice. He is a former member of the AAA's Board of Directors and the AAA's National Construction Dispute Resolution Committee. He is a member of the AAA commercial/construction panel of arbitrators and the AAA's Large Complex Case panel of arbitrators, the Construction Arbitrator Master Panel, and the National Construction Arbitrator Training Faculty.
Any meaningful discussion of advocacy in the mediation process should begin with recognition of the fundamental tension that exists between the two concepts. Mediation involves negotiation, conciliation and compromise between parties who have become adverse because of a controversy or dispute. Advocacy, by contrast, seems to be the antithesis of resolution through compromise, insofar as it is premised on notions of “winning” the battle of persuasion between adversaries on important issues such as responsibility and entitlement.
The tension between mediation and advocacy can become a positive force in the evaluative phase of mediation if the parties and their counsel use effective advocacy techniques, mixed with common sense and good judgment, to focus the participants on the key issues, engender constructive dialogue and bring realistic expectations to the bargaining table. Mediation advocacy is “effective” when it raises the parties’ awareness of the benefits of settlement and the risk and cost consequences of impasse and failure.