By Susan Tay, Founding Partner of OTP Law Corporation, Founder of PracticeForte Pte Ltd
This is the 5th part of a series on therapeutic justice and how it may be applied in family cases in Singapore. You may read Part 1 here, Part 2 here, Part 3 here and Part 4 here.
In these parts, we dealt 1stly with how the essence of Therapeutic Justice for family cases is in the healing. The next parts involve the perspectives and roles of the different players. They are namely, The Lawyer, The Accountant, The Mediator and in this article, The Mediation Advocate.
Family cases will be restricted to divorces and the issues arising out of a divorce. These issues include division of assets, financial support. Importantly, children’s matters like custody, care and control, access.
What is a Mediation Advocate?
Not a well-known profession in this part of the world, a mediation advocate, very simply defined, is a party’s professional representative in a mediation. The mediation advocate is definitely the presenter of the client’s case. She is the negotiator of that settlement the client is often desperate to reach. He is the protector of the client’s interests and makes sure any settlement reached secures that interests. Sometimes, she can also be the conflict resolver. In practice, a mediation advocate is quite often the client’s lawyer as well.
In short, a Mediation Advocate is Negotiator + Protector = Conflict Resolver. The Mediation Advocate advances the client’s case, protect the client’s interests, persuade acceptance and is non-adversarial.
A mediation advocate is definitely not a litigation lawyer.
Role of a Mediation Advocate vs The Lawyer
I have been a lawyer for 30 years and an active mediation advocate since 2013. That was when mediation becomes mandatory for all divorce cases involving child/children under 14 years old. That age limit has since be raised to just under 21 years old.
I am therefore in a good place to say this: the role of a mediation advocate is quite different from that of a litigation lawyer. There are some who may even think that the mediation advocate and the litigation lawyer as inherently having contradictory interests.
For instance, the lawyer may want to have the case proceed to trial and the outcome determined by a judge. Often this is because the lawyer feels that the law is on the client’s side. A mediation advocate, on the other hand, will earnestly help the client to settle the matter without further litigation. This may mean putting peace of mind over legal rights. Something repugnant to the lawyers who put rights over all else. A lawyer may think: this settlement is letting the other party off too easy because my client should be entitled by law to more.
Mediation Advocate as the Guardian of Client and Client’s Interests During the Peace Process
I often regard myself as a guardian or even a bodyguard for my client at the mediation session. Most of my clients hate the idea of sitting across from the person they are having a dispute with. So many times, the tension in the room is so palpable you can dance to it. Both parties will be sitting facing away from the other, arms folded across chest, lips pursed. At once angry and scared and feeling threatened, the reaction is likely to escalate by threatening back.
A good mediation advocate has to be the calm one. Not add to the fray of tensions, threats and escalations.
How to Better Serve the Client As a Mediation Advocate?
A mediation advocate advances the client’s case through persuasions, not arguments. You made the points amiably but firmly, with no need for aggression (even the passive types) or raised voices. Nice generates nice and so, quite often, the atmosphere immediately becomes more conducive for discussions. When things get heated and they do, then it will be a good time to indicate to the mediator perhaps a break or private sessions will be good. A good mediator will often beat you to that. Your mediation advocate selects that mediator for you.
At the private sessions, the mediation advocate can then bring some very sensitive issues to the mediator. She will explain why these issues. Which may be regarded as inflammatory or outrageous by the other party are important to the client. This is especially common in family disputes.
Family Law Does Not Always Solve Family Issues
In my focus of work which is family law, I firmly believe that the law often cannot and does not resolve many issues for families. These issues are multi-faceted. They involve complex mix of emotions (especially love, ironically), expectations, distrust, egos. They involve innocent parties beyond the married couples like children, parents, in-laws, helpers.
Many of these issues will not go away with a court ordered dos and don’ts. In divorce proceedings, parties do go back to court again and again if they have no other means to resolve their disputes.
Further, issues involving family members like children change. They grow up, they need more. Income capacity alters, ability to provide diminishes. And the old orders will not be fair anymore. Variations are thus necessary and parties must expect that orders will not remain forever. This idea can be unsettling.
Therapeutic Justice and the Role of A Mediation Advocate
I believe that people should learn how to adapt to the changing scenarios without resorting to litigation.
A mediation advocate can help advance that by 1st doing a good job at reaching not just a settlement, but an enduring settlement. If that settlement is enduring, parties are also likelier to work better together. It is then much easier to promote mediation as a default pathway to dispute resolution. An effective peace approach everyone can come back to again and again.