Professor Barney Jordaan has kindly contributed the following comment to my forthcoming book, the 2nd Edition of the Contentious Probate Handbook. This will be inserted at the top of the 50 page section in the book in which I discuss ‘Mediation Advocacy’. I would like to take this opportunbity to thank him for providing this. The book is scheduled for publication by the Law Society in mid to late February 2025.

‘Lawyers who are accustomed to litigation and who are required to represent a client in a mediation process often face a steep learning curve. Unlike the case in litigation, in legal or business mediations the goal is not to win a case but to discover the hidden drivers of a conflict or dispute – the parties’ underlying needs, interests and concerns – and then to cooperatively work with the mediator and the other party to find an agreed solution that satisfies those. Whereas the legal algorithm goes something like this: Law + Facts = (objective) Justice, the mediation algorithm reads: Interests + Consensus = (subjective) Justice.

Whereas in litigation lawyers are required to look after the client’s best interests through partisan, zealous promotion of the client’s case, as mediation advocates their task is to zealously pursue satisfaction of their client’s key interests through an understanding of all aspects of a dispute, and collaboratively working with the other party and the mediator to find a solution that represents a better alternative than pursuing a win-lose outcome in litigation. This requires, among others, familiarity with collaborative negotiation and joint problem-solving techniques and adopting a less adversarial attitude in favour of a more helpful, solution-focuses one.

While a lot has been written about mediation, mediation advocacy has been neglected, until now. This book goes a long way to filling that gap. It provides practical advice about how to become an effective mediation advocate from the author’s own rich experience as mediator and party representative. While its focus is on advocacy in trust and estate disputes, it has far wider appeal and relevance for mediation in other legal fields as well. It is an indispensable guide for lawyers who would like to expand their practice into the mediation space.’

(Barney Jordaan, LL.D (Stellenbosch University), Professor at Vlerick Business School, Belgium, Extraordinary Professor at Stellenbosch Business School, South Africa, Negotiation and Dispute Resolution Practitioner, Internationally Accredited Mediator, and author of ‘Negotiation And Dispute Resolution For Lawyers’ (2022), published by Edward Elgar Publishing).