Mediation can be defined as the act of intervening for the purpose of bringing about resolution to a conflict (Barsky, 2007). In the mediation process mediators are considered to be a non-bias, neutral third party who directs the mediation process in effort to guide the conflicting party’s to a viable conflict resolution. Having no displayed or exhibited pre-judgment of either conflicting parties, the mediator gives fair consideration to the arguments of both parties, however, making no judgments or determinations neither of whom is right or wrong nor concerning the parties decided resolution of the conflict.
An advocate, conversely, can be defined as one who speaks, plead, or argues in favor of propounding a client’s interest as it relates to the resolution of conflict. Advocates are privy to client information, germane to the details of the conflict and otherwise, that helps the advocate successfully to promote the cause or interest of the client. Having two seemingly similar functions, the distinctions between mediation and advocacy are seemingly subtle but require that adequate attention be given to the particulars that make the distinctions clear in effort to make integration of mediation and advocacy possible.
For the purpose of this paper, I will attempt to explore the integration of mediation and advocacy. Mediation is a process that is increasingly gaining popularity. With the sometimes extreme expenses associated with the legal fees when attempting to resolve a conflict through litigation, many are turning to mediation as a means of cost effective conflict resolution. Many, unfamiliar with the mediation processes may elect to have an advocate, i. e. , a lawyer, social worker, or counselor, present during the mediation process to ensure pertinent information is discovered and adequately discussed among other reasons.
However, the advocate, in the mediation process has a limited role in the processes of meditation: Consider for example, the lawyer’s role as an advocate in the mediation process. Lawyers and Mediation As discussed by Lawrence Hoover, Jr. (1996) in Virginia Lawyers Weekly, lawyers are often apart of the mediation process but not in the manner that many people are accustomed to believing. Because the mediation process is designed to be an amicable procedure geared toward finding a practical solution to conflict that suits both parties, a lawyers approach or presence o and in the mediation process needn’t be adversarial (Holbrook, 2001). Because mediation is facilitated negotiation, a lawyers presence in mediation is to persuade, through avocation, the opposing party to agree upon the terms of resolution that are in the best interest of his or her client (Holbrook, 2001). The lawyer’s position in mediation is not to persuade the mediator but rather to persuade the opposing party and its legal representation if present, of the benefit of conceded to his or her and the client’s ideas of a viable solution.
Lawyers are also present in the mediation process to help the client understand the nuances of the mediation process and help the client to organize his or her thoughts in to a coherent story for the mediator (Matthews, 2009). However, lawyers are not permitted to facilitate the mediation process and must respect the authority of the facilitating mediator. Nonetheless, lawyers advocating in mediation on behalf of a client can control to a certain degree the information that his or her client discloses.
Additionally, the lawyer can determine if his or her client will speak for themselves or if he or she, as the lawyer, will speak on the client’s behalf as emotional outburst by clients can deflect the client’s ability to reach a solution that represents his or her best interest (Hoover, Jr. , 1996). In this sense, lawyers can set the framework of the mediation process by adequately depicting the client’s recollection of details of what happened that resulting the need for conflict resolution through mediation, in a manner that is clear and devoid of distracting emotions and unnecessary and even damaging information.
However, in the mediation process, the mediator generally sets the tone for weather or not the expression of emotions and feeling are permissible in the mediation process (Hoover, Jr. , 1996). Social Service Helper in Mediation In the human service field advocates have a broader role in the participation of aiding their clients in mediation. Helping their clients to advocate on their own behalf, advocates often coach the client on the negotiation processes and offers pointers on how to successfully negotiate terms of an agreement that are suitable to the client’s interest and needs.
Coaching of this sort includes the advocate informing the client of their rights in mediation, explaining the particulars of the mediation process, helping the client to communicate effectively during the negotiation process, among other areas of consideration that include teaching their clients behaviors during the mediation process that will help to improve a clients credibility (Bersky, 2007). Nonetheless, there are legal and professional restrictions that prohibit the advocate in many ways.
For instance, advocates when defending a client must give great consideration to what he or she says concerning the opposition as defamation of character laws restricts what can be said of another person in public form (Barsky, 2007). Written or verbal attacks on the opposing party that are unfounded and untrue can potentially put the advocate and the helping agency in jeopardy of being sued for punitive damages for defamation of character (Barsky, 2007).
Advocacy in mediation has subtle guidelines that make the mediation process an easier and faster way to resolve conflict. Having an advocate present in mediation gives the client a sense of having an ally on their side in the mediation process. However, the advocate in the mediation process must be careful to not overstep his or her boundaries in the mediation process as to do so can result in damages to the client, the agency and the advocate.