Essential Skills for the Next Generation of Lawyers

essential skills for the next generation of lawyers

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.

Emotional Intelligence

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.

Strategic Questioning

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.

Mediation Advocacy: Q&A

Mediation Advocacy

Thanks to everyone who joined us for our open quarterly webinar on May 27th! We did not have time to address all questions that came through during the webinar, so we sat down with Bruce Edwards and addressed each and every one of those unanswered questions here. Did you enjoy the webinar? In addition to our quarterly open webinars, we also host monthly webinars on various topics for our members. Sign up for any one of our online courses to become a member and begin taking advantage of lifetime benefits like these monthly webinars & more. If you’d like to watch (or re-watch) the webinar, you can find the full recording in our Video Library.

Q: How do you convince your client to be patient, especially if it increases expenses?  
A: Remind clients that they need to compare with the alternative.  In most cases, the alternative (going through the court system) is going to require much more of their patience, time commitment and expense.  Help them to understand that the cost of litigation will be frightfully high compared with mediation.  

Q: Who is easier to handle, the party or the counsel to convince that mediation shall be persisted, if the 1st session does not head for settlement?
A: Usually the client, if they have not been properly prepared. The lawyer should have more institutional knowledge and experience about what it takes to bring about settlement. Clients seem to be more impatient, often thinking about the total time in the dispute, NOT just the time in mediation. This is when the pre-mediation client preparation is crucial.

Q: The litigation process means that lawyers are going to be paid for several years or even more, on the other hand mediation is fast and focused on mutual agreement, how do you think, is it an obstacle for lawyers to participate in mediation process?
A: This is a question I get relatively often, especially in my international travels. Even in the US, when we first started commercial mediation, I used to hear that often. It takes time to overcome historical traditions and limited thinking but it does happen. And once the momentum begins, it is quick to take hold as all stakeholders realize the benefits. Ultimately it is going to be important for clients to understand the dispute resolution alternatives. And for lawyers to take the big picture perspective for developing a reputation of meeting their client needs. As I said on the webinar, mediation advocacy skills are not intended to replace litigation advocacy skills, rather to extend the lawyers skills set. So get a reputation for meeting your clients needs. And more clients will follow.

Q: Does the mediator have a role in this advocacy in terms of motivation and influence even in facilitative mediation?
A: Absolutely. The lawyers work with the mediator to accomplish those objectives.

Q: Can it be said that being fair minded is an important prerequisite in mediation advocacy?
A: My first response would be: fair-minded by whose definition? But as a general concept, yes. Especially to the extent it promotes empathy and good behavior.

Q: How about when one lawyer acts with mediation advocacy skills but the other lawyer clearly behaves like a litigation advocate?
A: The mediator will attempt to assist the litigator (the one acting like a litigation advocate) so he doesn’t jeopardize the process. But ultimately the mediation advocate is free to not reward bad mediation advocate behavior. Unfortunately, I see that happening often in my world. And that is part of the reason for this webinar.

Q: What you can say about litigation? How we can deal with litigation to our clients?
A: Lawyers need to distinguish it from mediation and tell clients that there will come a time for litigation. It’s not one vs. the other, rather it is good to try the most efficient and beneficial process first.

Q: Are there strict rules of evidence to be adhered to in meditation processes?
A: No. But most lawyers will consider rules of evidence in evaluating what information will persuade others and especially clients of their changed position.

Q: What do you think about advantages and disadvantages of ODR, for advocates?
A: Do you mean ODR or virtual mediation? With the COVID19, the traditional lines and definitions have blurred. ODR is typically used without lawyers and in high volume, smaller disputes (EBay for example). eMediation is a relatively new term describing dispute resolution both with text and video conferencing for simple cases, again without attorney representation (neighbor disputes for example). Virtual mediation is essentially what I’ve been doing since we began our shelter-in-place. At JAMS, we use the zoom platform and all parties have representatives. We have joint sessions and private caucuses, depending on the dispute. All parties are represented.

ODR definitely has a role in the ADR continuum but is not really germane to this discussion. The mediation advocate skills are the same; the mediation advocate just to be more focused in a virtual environment. Here is a blog I wrote at the beginning of our shelter-in-place order. I may be updating this moving forward.

Q: Can you talk a little bit more about how attorneys and clients should design the right process?
A: Designing the appropriate process begins by understanding the different types of processes available and variables of your specific dispute (for example, should it be focused for a 1 day or multiple days, what would be the right mix of face-to-face and private sessions, the type of case and the specific needs of your client). This could could be a topic of its own webinar; hard to answer in an email.

Q: Are there situations where mediation is not the best way to proceed?
A: Limited situations but there are a few. More often this is a question of timing as opposed to whether mediation is right. However, in some instances the parties need legal precedent or parties will face an onslaught of multiple claims and don’t want to settle because they don’t want to encourage more claims.

Q: Is litigation is not good?
A: There is undoubtedly a place for litigation in our legal worlds. Still, we’re increasingly learning that there are aspects of litigation that are time worn and do not meet the needs of the present world. Again, as I described above, mediation advocacy skills are meant to supplement litigation skills, not supplant them.