The Abstract to my forthcoming article (based upon my recent online talk to members of the SCMA worldwide) – ‘Mediation Advocacy in Trust & Estate Disputes – Part 1: Preparation’, currently reads:
‘The twin pillars of Mediation Advocacy are:
(i) ‘effective preparation’; and
(ii) ‘skilful negotiation’.
In Part 1 of this article I will discuss preparation and in Part 2 – negotiation.
It is a cognitive error to assume that because a legal practitioner is a competent trial advocate, that they must also be a competent mediation advocate, i.e. dispute resolution negotiator. While to an extent advocacy skills transfer to negotiation, the two skill sets are not the same. So, a practitioner may be a brilliant trial advocate but ineffectual as a dispute resolution negotiator.
In the UK, ‘negotiation’ is generally not taught to law undergraduates, nor is it taught to student solicitors and barristers on their vocational courses. As a result of changes made to the Civil Procedure Rules on 1 October 2024, there is likely to be an increase in mediations, whether parties consent or not, and consequently an increased demand for practitioners who are skilled mediation advocates, i.e. negotiators. So, in the opinion of the author, this gap in the education and professional training of lawyers in the UK is likely to change, otherwise market demand for proficient negotiators will exceed supply.’
In Part 2 of the article, I will also discuss ‘Ethics in negotiation’. I have just ordered a copy of ‘What’s Fair: Ethics for Negotiators’ by Carrie Menkel-Meadow, which I will read cover-to-cover in December.
It has just occurred to me that since ‘negotiation’ is generally not taught to law undergraduates, nor to student solicitors and barristers on their vocational courses, that nor is ‘Practical Ethics in negotiation, i.e. doing the right thing.’
So, in developing a future ‘Negotiation’ course for law students at all levels, ‘Ethics in negotiation’ is a key component.
A deep understanding of ethics is vital not only to mediation advocates (whatever the nature of the dispute) but also to mediators.
As I said, I will discuss this in Part 2 of my article which I will write during the first quarter of 2025. I am on schedule to submit a complete draft of Part of the article to the editor of Trusts & Trustees in 21 days time. I have already written 25 pages of manuscript in one week.
2nd ed Contentious Probate Handbook – I am awaiting return of the manuscript from the type-setter for proof-reading. That is the final step prior to publication.