Advocacy in Mediation with the Government

Summary

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Advocacy in alternative dispute resolution (ADR) is very different from advocacy in other settings. 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. Since private parties suing the government sometimes feel as if they are single-handedly taking on a giant, faceless bureaucracy, it is a good idea for government lawyers to be sensitive to this concern. Government lawyers often find that treating private parties with respect pays dividends in settling cases. Some defendants find it effective to offer an apology during the opening statement. An apology can be disarming and allow productive settlement talks to begin. Both parties may decide to ask the neutral to provide an evaluation of the case to help them move toward a settlement. After parties participate in ADR for a while, they generally can recognize if a settlement is possible.

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Extract

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Advocacy in Mediation with the Government

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.

Initial Considerations

In planning how to advocate in ADR, both parties should begin by considering the special dynamics that are involved in cases with the government.

Since private parties suing the government sometimes feel as if they are single-handedly taking on a giant, faceless bureaucracy, it is a good idea for government lawyers to be sensitive to this concern. Some government lawyers have been working to reduce the impression that the government is ganging up on a private party. This can decrease feelings of defensiveness on the other side, which can increase the chances for settlement. Government lawyers often find that treating private parties with respect pays dividends in settling cases.

Private parties should pay attention to the special concerns of government parties. One is that most government matters are litigated by a single attorney who probably has many cases to manages many cases and only limited resources to help manage them. Supervision of cases also may be modest. Many private parties would be less intimidated if they knew the actual situation on the government side.

Parties must decide where they will con...

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