While the number of civil cases that are resolved through mediation (and other forms of alternative dispute resolution) has soared, the cases that end up in a jury trial have drastically declined. Still, not many litigators have acquired the skills needed to be effective mediation lawyers. In fact, over the past thirty years, one of the untold secrets among the mediation community is that the quality of mediation advocacy – the ability of a lawyer to present and argue a client’s position, needs, and interests in a non-adversarial way in mediation – generally ranges from fair to poor.
With a continued emphasis on litigation advocacy, it’s no wonder that formal mediation advocacy training has been predominantly overlooked. What training does exist is primarily experiential, “on-the-job” learning. While there are moments of creative thinking and strategic behavior in mediation, there are an equal number of missed opportunities when evaluating mediation advocacy. The inescapable conclusion is that there is a real need for litigation advocates to become better mediation lawyers.
My friend and colleague, Daniel Weinstein, said it best when he observed, “In a world in which less than 1% of cases end in verdicts, it is surprising that lawyers prepare elaborately for a trial that will never occur, yet feel that the only preparation required for mediation is a good night’s sleep.”
I often ask myself, “Why didn’t this lawyer prepare differently for this critical moment when they have the undivided attention of the decision-makers on the other side? Or, “Why can’t this lawyer visualize the impact of their message or approach on the other party down the hall?”
Like many mediators, I spend too much precious time guiding advocates through challenging moments that they have predominantly created themselves.
What is a Mediation Lawyer?
A mediation lawyer, sometimes referred to in the profession as a mediation advocate, should not be confused with an attorney-mediator. A mediation lawyer is a licensed attorney who has received mediation skills training and, better yet, who has received training on how to best help their client resolve the disputes through meditation.
Not only are they familiar with the nuances of the mediation process, but they have acquired unique skills for navigating the potential pitfalls that can get in the way of achieving the best outcome for their clients. A good mediation lawyer is supportive of the mediation process and is ideally suited to represent their clients in the mediation environment. Mediation lawyers often handle various civil disputes, including employment disputes, which are increasingly being resolved through mediation.
An attorney mediator, on the other hand, is a lawyer skilled in mediation who acts as a neutral third party to facilitate discussion and negotiation during mediation. Because many attorney mediators have legal experience representing clients in court for the same kinds of disputes that they mediate, they have acquired invaluable knowledge of the issues at play and key insights for helping participants reach an agreement.
Unlike a neutral mediator who facilitates discussions and guides both parties through the mediation process, a mediation lawyer acts as counsel for their client and provides legal advice. They help their client understand their legal rights and the strengths and weaknesses of their position and can fashion persuasive arguments based on the strengths of their case.
During mediation sessions, a skilled mediation lawyer advocates for their client, keeps the negotiations on point, and advises their client about the benefits or drawbacks of a potential settlement agreement. When parties are unable to reach a mutually acceptable agreement, a mediation lawyer recognizes that there may be opportunities for future engagement.
Mediation Advocacy Training for Lawyers is a Crucial Step
Although mediation has developed and grown over the past several decades in the U.S., legal education has remained primarily focused on litigation advocacy. Yet, alternative dispute resolution is here to stay.
Mediation serves as a complementary process to the legal system, helping to maintain the integrity and efficiency of the justice system. Mediation advocacy training for lawyers is now a crucial step toward developing the broadest range of skills to help clients resolve conflicts and achieve winning results outside of court. In other words, to be truly successful, a lawyer must be able to achieve effective settlements that advance the client’s interests in the most cost-effective and timely manner. Mediation has proven itself to be one of the best ways to do that.
For too long, helping your client resolve their dispute through litigation or mediation has been viewed by many as a binary choice: you were a skilled advocate in one, but not both. This choice is a false dichotomy. Litigation advocates must pursue, with equal vigor, the essential skills required to develop mediation competency and become effective mediation lawyers. Across a wide range of civil disputes, including commercial, divorce, family law, real estate, and trust disputes, developing mediation advocacy skills can help lawyers represent the best interests of their clients in mediation and achieve winning results.
What Skills Define an Effective Mediation Lawyer?
While there are complementary and sometimes overlapping skills needed for both mediation advocacy and litigation advocacy, there are distinctly different skills that serve the mediation advocate in contrast to those that serve the litigation advocate. Effective mediation lawyers need to develop skills in active listening, empathy, patience, and emotional intelligence, as well as how to be flexible and creative in fashioning ways to support and meet the client’s needs in the mediation session. For example, a joint session is a collaborative setting where all parties, along with their legal representatives, meet simultaneously with the mediator to discuss their cases. Many litigators avoid joint sessions for fear of losing control or the emotional toll on their clients. In reality, it is often in the joint session that information crucial to the successful resolution of the conflict is discovered. Litigators need to learn the nuanced skills that differentiate participating in an opening session in mediation versus giving an opening statement in court.
Effective Mediation Lawyers Understand the Uniqueness of the Mediation Process
I’m fond of telling mediators and lawyers alike that the real danger in life lies in not knowing what you don’t know. For many individuals in the world of mediation, this statement couldn’t be more indicative of the challenges we face.
For mediation to be effective, it is crucial that the parties agree on the mediator’s selection, establishing a cooperative environment conducive to dispute resolution. From there, it is a matter of thinking less about tearing down the opposing parties’ arguments and more about preparing to think about a different perspective. Unlike in the courtroom where the lawyer has one primary audience, the judge or jury, in mediation, the effective lawyer understands that their audience includes decision-makers on the other side, their client, and the mediator. What probably appeals most to the effective mediation lawyers I’ve worked with is the potential for creative solutions unavailable before a jury or a judge.
There is another compelling reason to provide mediation lawyer training, one that is especially critical in emerging mediation markets: achieving acceptance of the practice itself. Thinking back to my early years of promoting mediation here in the U.S., lawyers were the most important stakeholder group to engage, while they also put up the most resistance.
Embracing Mediation Through Better Understanding
Fast-forward to recent times. As I teach mediators and assist governments in other countries in successfully implementing mediation in their judicial systems, I’ve come full circle. I’m again confronted by lawyers who resist mediation based on their fear of the unknown, economic uncertainty, or other reasons. Their resistance impedes the acceptance of a culture of mediation in their communities.
Assisting local mediators in engaging these attorneys through mediation advocacy training may be the best way to break down their resistance. Mediation advocacy training offers lawyers the opportunity to reimagine their career trajectories. By embracing mediation through better understanding and then building mediation advocacy skills, mediation lawyers can separate themselves from their peers and deliver winning results for their clients.
The Need to Formalize and Institutionalize Mediation Advocacy Training
At Edwards Mediation Academy, we believe that the long-term success of mediation in the United States and other parts of the world depends on its acceptance and the building of the attendant skills of mediation advocacy. In pursuit of this goal, it’s simply not enough to let learning evolve organically through “on-the-job” experience.
Instead, we must formalize and institutionalize the relationship between lawyers and mediation through quality mediation advocacy training. Too many lawyers sit comfortably in the doldrums, waiting for the winds to change. Acquiring the skills to become better mediation lawyers will help them learn to adjust their sails and catch the winds of opportunity.
