As a mediator, I have observed a variety of styles of dispute resolution advocacy used by lawyers at mediation. Through my experience, I have identified five things that lawyers can do that work effectively at mediation and in negotiations.
Firstly, recognise that the parties are the primary decision-makers at mediation. This means that the other party is your primary audience, and you must make sense to them as they are the ones making the decisions – along with your client. Unlike court, where the audience is the judicial decision-maker, the parties to the dispute are directly affected by the outcome at mediation, and they must be influenced accordingly.
Secondly, understand that mediation is not court. Legal arguments and analysis will have already been exchanged, perhaps repeatedly, without having resolved the dispute. Effective dispute resolution advocacy requires more than repetition of legal arguments and whatever else has already been discussed.
Thirdly, approach the mediation with an open mind and a willingness to engage in a genuine exchange of information and views. Mediation is an opportunity for parties to explore options for resolution that may not have been considered before.
Fourthly, be prepared to listen and empathize with the other party’s perspective. Showing understanding and empathy can go a long way in building trust and reaching a resolution.
Lastly, be creative and flexible in exploring different options for resolution. Often, a win-win outcome can be achieved through creative problem-solving and an openness to exploring different possibilities.
In conclusion, effective dispute resolution advocacy at mediation requires a different approach than that used in court. Lawyers can be more successful at mediation by recognizing the primary decision-makers, approaching the mediation with an open mind, actively listening and empathizing, and being creative and flexible in exploring different options for resolution. By following these five things, lawyers can be more successful in achieving a resolution that satisfies their clients’ interests while also maintaining positive relationships with the other party.
