As trial lawyers, we put a lot of effort into developing our deposition skills, trial skills and negotiating skills. When we mediate for a client, we use many of the same skills, but we have to adjust our approach if we want to have the best outcomes.  Below are some of my thoughts about how you can adjust your trial and litigation skills for success in mediation.

1. Strategic Communication: In trial, our communication style is often assertive and is focused on persuading the judge or jury to accept our client’s position as truth. In mediation, lawyers often make the mistake of focusing on what would persuade the mediator rather than the other party. In mediation, the focus should be on providing information to the mediator that will persuade the other party to accept what you believe is a good settlement. The difference is subtle, but it’s important. It is far more important to consider what would persuade the other party than it is to convince your mediator.
2. Preparation and Research: Mediation requires you to know your case just as you would for trial. But preparing for mediation requires you to spend time trying to understand the other party’s interests. Especially in business litigation, those interests often are broader than just writing or receiving a check. If you develop insights into the other party’s interests, you will have a better chance of developing a settlement proposal that you both can accept.
3. Questioning Techniques: The ability to ask insightful questions during direct and cross-examination can be adapted in mediation. Even though you won’t be able to cross-examine the opposing party directly, be prepared to ask your mediator to ask questions to the other side about their case. The other side may not allow the mediator to share the answers, but in mediation, you are after more than answers. When your mediator asks the other side critical questions about their case it can help them see weaknesses in their position or even a different path to reaching settlement. Use your mediator to explore the motivations of the opposing party and uncover areas of potential agreement.
4. Reading the Room: Trial lawyers learn to gauge the reactions of the judge and jury. Try to read the emotions and dynamics of your mediator and the opposing party, adjusting your tactics as necessary. While the settlement terms are always important, it’s possible to miss a great settlement opportunity if you ignore the emotions of the other participants.
5. Demeanor: Mediation requires a more open demeanor and approach than trial. When you are trying to negotiate a settlement remember that it’s never a good idea to aggravate someone who can hurt your client by doing nothing. The goal is to get the other party to engage, not walk away.

When mediating, consider how you can advocate for your client without being combative. With a little thought and effort, trial skills can be harnessed into effective mediation skills.