Does it matter whether your Mediator is also an Attorney or an Advocate?

In previous articles published in Mediation Insights, we explored court-annexed mediation, mediation procedure and considerations when selecting a mediator.

An equally important question occasionally arises when parties appoint a mediator:

Does it matter whether the mediator is an attorney or an advocate?

South Africa’s mediation landscape includes both attorney-mediators and advocate-mediators. Both are trained legal professionals and both may be highly effective mediators. However, the professional experiences that shape attorneys and advocates are often quite different.

Those differences do not determine whether someone will be a good mediator. Mediation requires skills that extend far beyond legal knowledge alone.

Nevertheless, understanding how attorneys and advocates traditionally approach disputes may provide useful insight into the strengths they may bring to the mediation process.

A seasoned litigation team often combines both approaches.

THE ATTORNEY’S APPROACH: “SHOULD WE LITIGATE?”

An attorney is the architect of the litigation.

Their assessment begins long before pleadings are drafted.

An experienced attorney asks:

• What does the client actually want?
• Is litigation the best mechanism to achieve that outcome?
• What are the commercial, emotional and practical consequences?
• What evidence is presently available?
• What evidence can realistically be obtained?
• What documents are missing?
• Who are the witnesses?
• Is there urgency?
• Can this matter settle?
• What are the costs versus the likely benefit?
• Is the client being completely truthful?
• What risks exist if the client loses?

The attorney’s focus is therefore strategic and holistic.

The attorney must also think about:

• preservation of evidence;
• interlocutory applications;
• discovery strategy;
• expert witnesses;
• funding;
• recoverability of costs;
• execution after judgment;
• insolvency risk;
• reputational consequences; and
• future appeals.

The attorney is continuously asking:

“How do I get my client from today’s problem to the best practical outcome?”

Winning at trial is only one possible solution.

THE ADVOCATE’S APPROACH: “CAN I WIN THIS CASE?”

The advocate generally enters after much of the factual investigation has been completed.

The advocate immediately begins analysing:

• What are the legal issues?
• What are the real disputes of fact?
• Which facts actually matter?
• Which facts are distractions?
• What is the applicable law?
• Which precedent governs?
• Where is the burden of proof?
• Which witnesses are dangerous?
• What concessions should be made?
• What are the weaknesses in my own case?

An advocate reduces thousands of pages into several decisive legal questions.

Where an attorney may see an entire landscape, the advocate sees battlefields.

ATTORNEYS THINK IN TIME

Attorneys think across months or years.

They ask:

• What happens after summons?
• What happens after discovery?
• What happens after trial?
• What if we lose?
• Can the judgment actually be enforced?
• Does this create tax implications?
• Will this affect other litigation?

They manage the litigation journey.

ADVOCATES THINK IN PERSUASION

Advocates think about persuasion.

They ask:

• How will this judge react?
• Which authority carries the most weight?
• What will opposing counsel argue?
• Which argument wins first?
• Which issue should never be argued because it weakens stronger points?

A good advocate is constantly predicting the judge’s questions before they are asked.

ATTORNEYS MANAGE EVIDENCE

Attorneys build the evidential foundation.

They decide:

• which documents to subpoena;
• which experts to brief;
• which witnesses require preparation;
• whether additional investigations are needed;
• whether further affidavits should be obtained.

They understand that cases are often won long before anyone enters court.

ADVOCATES WEAPONISE EVIDENCE

Once evidence exists, advocates determine:

• admissibility;
• relevance;
• evidential weight;
• credibility;
• legal consequences.

One document can become devastating evidence or legally worthless depending on how it is presented.

ATTORNEYS ASSESS RISK

Risk assessment includes:

• adverse costs orders;
• punitive costs;
• personal cost exposure;
• prescription;
• jurisdiction;
• procedural defects;
• judicial temperament;
• settlement opportunities;
• business implications;
• family consequences.

Attorneys are risk managers.

ADVOCATES ASSESS LEGAL VULNERABILITY

Advocates look for legal pressure points.

Examples include:

• contradictions;
• evidential gaps;
• impossible burdens;
• procedural irregularities;
• constitutional issues;
• interpretation disputes;
• credibility attacks;
• precedent that destroys an opponent’s case.

They ask:

“Where is the case legally weakest?”

ATTORNEYS KNOW THE CLIENT

Attorneys spend months or years with clients.

They learn:

• emotional triggers;
• financial realities;
• personality;
• commercial priorities;
• family dynamics.

This enables practical advice, including telling a client that the strongest legal position may not be the wisest course.

ADVOCATES KNOW THE JUDGE

Experienced advocates develop an understanding of judicial preferences.

They consider:

• preferred style of argument;
• appetite for technical points;
• tolerance for lengthy submissions;
• approach to credibility disputes;
• receptiveness to settlement.

This is not about favouritism, but about tailoring advocacy to the decision-maker while remaining faithful to the law and the facts.

SETTLEMENT

An attorney asks:

“When should we settle?”

An advocate asks:

“On what terms should we settle?”

A skilled advocate often advises settlement after recognising a subtle legal vulnerability that may not yet be apparent to the client or even the attorney.

THE BEST LITIGATION TEAMS

The strongest litigation teams function collaboratively rather than hierarchically.

The attorney contributes:

• factual mastery;
• client management;
• procedural control;
• evidence gathering;
• strategic planning;
• commercial judgment.

The advocate contributes:

• legal analysis;
• forensic reasoning;
• persuasive advocacy;
• cross-examination strategy;
• legal drafting;
• appellate insight.

When each respects the other’s expertise, the client benefits from both strategic planning and incisive legal argument.

A SEASONED LITIGATOR’S ASSESSMENT

After decades in practice, the most experienced litigators, whether attorneys or advocates, tend to ask the same three questions at the outset:

1. Can I Prove the Facts?

A compelling story without admissible evidence rarely succeeds.

2. What Does the Law Actually Require?

The facts must satisfy the legal elements of the cause of action or defence.

3. What Is the Outcome That Best Serves the Client’s Interests?

Sometimes that is a trial and judgment; at other times it is an early settlement, mediation or another commercial resolution.

The mark of an accomplished litigator is not merely winning cases. It is recognising when litigation is the right tool, when it is not, and guiding the client toward the outcome that best advances their interests while remaining faithful to the law.

THIS IS WHERE THE DISTINCTION BECOMES PARTICULARLY INTERESTING

Mediation is not litigation in a different room.

It requires a different mindset.

The best representatives in mediation are often those who can step outside their traditional professional roles.

That said, attorneys and advocates each bring distinct strengths.

THE ATTORNEY’S VALUE IN MEDIATION

An experienced attorney usually has the advantage of knowing the client intimately.

They know:

• what the client says publicly versus privately;
• what the client fears;
• what the client can realistically afford;
• where the emotional “red lines” lie;
• which issues are negotiable and which are not.

That knowledge is invaluable because mediation is driven by interests rather than legal positions.

For example, in a divorce the attorney may know that the dispute is not really about the pension or the house. It is about preserving a business, protecting the children, maintaining dignity, or achieving financial certainty.

The attorney can therefore help craft creative solutions that a court could never order.

THE ADVOCATE’S VALUE IN MEDIATION

The advocate brings a different discipline.

A good advocate constantly performs reality testing.

They ask:

• If this matter proceeds to trial, what is likely to happen?
• Which party carries the evidential burden?
• Which witnesses are vulnerable?
• How would a judge probably view this issue?
• Which arguments are unlikely to succeed?
• What are the litigation risks that the client may be overlooking?

This objective legal assessment can help parties avoid unrealistic expectations and make informed decisions.

THE ATTORNEY SPEAKS TO THE CLIENT

Throughout a mediation, an attorney often asks:

“Can my client live with this outcome?”

That question recognises that a technically favourable settlement may still be unworkable if it does not align with the client’s practical needs or future relationships.

THE ADVOCATE SPEAKS TO THE CASE

The advocate often asks:

“Will this position withstand judicial scrutiny?”

This keeps the negotiations grounded in legal reality and prevents parties from pursuing positions that are unlikely to succeed if litigation follows.

DIFFERENT NEGOTIATION STYLES

An attorney may say:

“Let’s find a solution that both parties can implement and move forward with.”

An advocate may say:

“If we cannot resolve this today, here is how a court is likely to approach the dispute.”

Both perspectives can be valuable.

One is future-oriented; the other provides a legal benchmark.

POTENTIAL PITFALLS

Attorneys can sometimes become deeply aligned with their client’s emotions or long history, making objective reassessment more difficult.

Advocates can sometimes approach mediation as an extension of litigation, focusing heavily on legal merits when the dispute may be driven by commercial, emotional or relational considerations.

Neither tendency is inevitable, but both are recognised risks.

WHICH IS BETTER?

There is no universal answer.

• If the mediation centres on preserving relationships, managing ongoing commercial dealings or addressing family dynamics, an experienced attorney with strong negotiation skills may be particularly effective.
• If the mediation involves novel legal issues, significant financial exposure, constitutional questions or a high likelihood of litigation if settlement fails, an advocate’s legal analysis may add substantial value.

THE IDEAL COMBINATION

The most effective mediations often involve both.

The attorney provides:

• detailed factual knowledge;
• understanding of the client’s objectives;
• practical and commercial insight;
• continuity of advice.

The advocate provides:

• objective legal analysis;
• candid assessment of litigation risk;
• strategic evaluation of legal strengths and weaknesses;
• assistance in reality testing proposed outcomes.

Together, they help the client evaluate not only what is legally possible, but also what is practically sustainable.

THE MEDIATOR’S PERSPECTIVE

An experienced mediator often observes something neither party initially sees:

The best representative in mediation is not the one who argues most persuasively, but the one who listens most effectively.

Unlike litigation, where persuasion is directed at a judge, mediation requires persuasion directed at the parties themselves.

The representative who can translate legal rights into practical options, manage expectations without inflaming conflict and help a client make informed decisions usually contributes most to a successful resolution.

In that sense, the most effective mediation representatives, whether attorneys or advocates, temporarily set aside the instinct to “win the case” and instead focus on helping the parties solve the problem.

CONCLUDING THOUGHTS

Attorney-mediators and advocate-mediators both bring valuable perspectives to dispute resolution.

Their professional backgrounds may influence how they analyse conflict, reality-test proposals and facilitate discussions.

However, mediation ultimately requires a distinct skill set that goes beyond legal training alone.

The question is therefore not whether an attorney or advocate makes the better mediator.

The better question is whether the mediator possesses the experience, judgment, communication skills and process-management ability necessary to assist the parties in resolving their dispute effectively.