Many of us go to law school to become trained as litigation advocates, where our studies are focused on the knowledge and skills needed to represent clients before a judge or jury. Today, however, the opportunities to represent clients in a jury trial are diminishing. By some estimates, less than 1% of civil disputes today end in a jury trial as many litigants, in-house counsel, courts, and judges are demonstrating a strong preference for mediation and other forms of alternative dispute resolution for resolving conflicts.
And with good reason. Compared to litigation, mediation has proven itself to be a more time-saving and cost-effective way to resolve disputes of all complexities and produce winning results for both sides.
While litigation isn’t going away, young lawyers today will have fewer opportunities to participate in traditional trial litigation. Mediation has become an essential tool in resolving civil disputes, and the next generation of lawyers will need to add mediation advocacy to their skill set to develop the broadest range of competencies for serving their clients. Young lawyers should wisely seek out opportunities for mediation advocacy training to master the skills needed to effectively represent their clients in mediation.
As I explain in the Edwards Mediation Academy’s course on The Effective Mediation Advocate, the goal of mediation advocacy training is not to replace litigation advocacy; it’s to supplement it. It’s to expand your skill set in a new direction, one that will add value for your clients and your legal practice.
The Mediation Mindset is Not the Litigation Mindset
As a practicing mediator, I regularly observe lawyers appearing in mediations, and sadly, many lack the mindset and the client-focused skills needed to be the best advocate for their clients. If you approach mediation with the time-tested skills of a litigation advocate, where your goal is to crush your opponent, I guarantee you that you will fail in your effort at advocacy in mediation. Effective mediation advocates look for ways to establish common ground with the other side while negotiating in a principled and respectful manner. Winning at mediation requires a different mindset entirely.
Essential Skills Needed for Effective Mediation Advocacy
While mediation advocacy and litigation advocacy have some complementary skills, even sometimes overlapping, there are distinctly different skills that serve the mediation advocate in contrast to those that serve the litigation advocate. I will briefly share some of the essential skills I feel are needed to be an effective mediation advocate.
Conflicts can be rife with emotion. Mediation advocates need to understand their own emotional competency and comfort level for advocating for clients in an emotionally charged environment. The best mediation advocates will address their own client’s emotional needs as well as those of others in the dispute.
Exceptional Listening Skills
Unlike litigation advocacy, listening skills for the mediation advocate must include the ability to listen with empathy, compassion, and an open mind for new information. It is equally important to know when to let others talk to learn more from them and ultimately build the essential connections to persuade the other side of your client’s position.
In preparing cross-examination skills as law students, we learn the technique of leading or close-ended questions. Yet, as we move into the mediation world, there are entirely different types of questioning that serve you better. The mediation advocate must learn the art of using all kinds of questions, including broad, exploratory, and open-ended questions, and know when and how to ask specific types of questions to achieve strategic advantage.
The best mediation advocates are empathetic. Too often, lawyers, particularly on the defense side, are trained to doubt the veracity of a complaint filed or the claims brought to the table in a dispute resolution. Litigation advocates often develop an inability to empathize or relate to someone who has suffered the harm that brings people to conflict resolution discussions. The best mediation advocates appreciate that nothing helps deepen their connection with the other side and soften the tone of the conflict than a genuine display of empathy. That doesn’t mean giving up on positions. It means starting with a degree of humanness that will set the tone for productive discussions.
Trust is fragile and takes time to develop. The goal of the effective mediation advocate is to first convince the mediator and others in the room that they can be trusted and the things they say are credible. One of the ways to do this is to avoid the type of exaggeration or hyperbole often used in opening statements by lawyers trying to impress the other side with their ability to prevail in an all-or-nothing world. This type of approach is off-putting and will distance you from the mediator who is there to find some middle ground in the conflict. By avoiding those kinds of grandiose statements or trite phrases, you will be well on your way to developing credibility with others in the room.
Knowledge is power, and preparation is key to successful outcomes for your client’s mediation. The best mediation advocates seek to be the most competent person in the room, and they know the case inside and out. They have done all of the pre-mediation work, prepared a mediation brief, data points, reviewed document exchanges, and the workup between experts. They have met with and prepared the client as well as the mediator. They are well-prepared for any potential derailing moments in the mediation.
The best mediation advocates don’t come to mediation with a rigid agenda. They come knowing that their side is to be pursued as vigorously as possible, but in the end, there is likely to still be a difference of opinion and difference of positions between parties. They are able to read the audience, respond to new information and changing dynamics, and adjust on the fly. When change is required, effective mediation advocates respond appropriately, demonstrating flexibility and control, even in the most challenging moments.
The intersection of preparedness and creative thinking lies at the core of the mediation potential. Unlike civil litigation, where legal remedies are afforded and defined under statutes, in the world of mediation, the solutions are limited only by the creativity of the parties and their advocates. The best mediation advocates appreciate that mediation is really about the art of exploring the possible ways to match the client’s interests with creative solutions.
One of the things that attracted me as a mediator to the mediation process was how effective the process was in allowing disputants to come to a conclusion within the stretch of a single day and effectively resolve a conflict that had been festering for months or years. That, to me, was the power of the process. The most effective mediation advocates appreciate that there is a process to be followed. They prepare themselves and their clients for the patience required to work through complex issues and negotiate an agreement.
This list of essential skills for representing clients in mediation is not exhaustive and is a part of the many success factors and best practices I cover in-depth in our course, The Effective Mediation Advocate. What is crucial for mediation advocates to understand is that the mediation process is unique and has its subtleties. Effective mediation advocacy is centered around careful listening and being in tune with the needs and interests of clients and others in the dispute. It is all about being super prepared yet flexible and creative in fashioning ways to meet the client’s needs.
I am convinced that mediation will occupy the prominent place in alternative dispute resolution forums going forward and that lawyers will play an increasingly indispensable role in protecting their client’s interests in mediation.
For those of you who are a few years into your litigation practice or contemplating a future in litigation advocacy, I encourage you to think about how you will develop the essential skills to meet your client’s needs for mediation advocacy and take advantage of the opportunities before you. For the next generation of lawyers, these skills are essential and will add value to your clients while expanding your legal practice.