|Help

Advocacy in Mediation With the Government - Chapter 70 - AAA Handbook on Mediation - Third Edition

Author(s): 
Jeffrey M. Senger
Page Count: 
21 pages
Published: 
April, 2016
Jurisdictions: 
United States
Practice Areas: 
Dispute Resolution & Litigation,
ADR,
Mediation,
Mediators
Author Detail: 

Jeffrey M. Senger is a Partner in the Food, Drug and Medical Device Regulatory and Enforcement practices in Sidley’s Washington, D.C., office. Prior to this, he was Senior Counsel in the Office of the Associate Attorney General at the United States Department of Justice. 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 served as an arbitrator for the Better Business Bureau and the District of Columbia Bar Association. Mr. Senger also served 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 chapter is condensed from chapter 5 of Mr. Senger’s book, Federal Dispute Resolution (Jossey-Bass 2004). 

PDF606.52 KB

$40.00
Description: 

Originally from:

 
ADVOCACY IN MEDIATION WITH THE GOVERNMENT


Jeffrey M. Senger


I. Introduction
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.