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Weapons for peace: mediation is becoming a staple of pretrial practice - but your expertise is trying cases. Wondering how you go about 'winning' at mediation? Hint: a lot depends on your attitude.

Article Excerpt
Mediation is here to stay. Increasingly, courts are turning to mediation--mandatory or otherwise--as a way of managing burgeoning dockets. The ever-rising cost of litigation has caused a corresponding decrease in the percentage of cases going to trial. The many uncertainties inherent in arbitration are creating a demand for mediation as an alternative there, too.

Does this mean trial lawyers should beat their swords into plowshares? Absolutely not. Trial lawyers still need warrior skills. They need to know how to fight discovery battles, wage a campaign through motions, and, if necessary, defeat the opposition in court. And they still need to be able to analyze a case for its trial potential, strengths and weaknesses, and jury appeal. But clients need, want, and often expect their litigators to have mastered peacemaking skills as well.

As a trial lawyer and mediator, the biggest mediation mistake I have seen litigators make is to treat mediation as an extension of war-making, requiring the same skills and approach. There is an old swing: "If the only tool you have is a hammer, every problem looks like a nail." Likewise, if the only advocacy skills you have developed in your career are for convincing a judge or jury to see the case your way, every forum looks like a courtroom.

Advocacy in peacemaking is different. The audience is different. The analysis is different. The presentation is different. All are equally challenging.

Mediation is more than just a ping-pong match over numbers. It is no easier or less demanding than a trial. It requires the advocate's warrior skills and insights, but also the diplomat's finesse in analysis and presentation.

Mediation goals

Unlike a trial, the overall aim in mediation is not to convince the other side--or the mediator--that your client is right. Your opponent's agreement on facts and issues is both unnecessary and unlikely. Your goal is not to persuade opponents that they are wrong about the issues, but rather to persuade them that settlement is in their interest, given the risks they face in further litigation and the benefits they can obtain from your proposals.

The difference is subtle but important. Clients--even the most...

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