Today, most civil cases are mediated or are referred to some other form of alternative dispute resolution. To be an effective litigator, you need to understand the different strategies and skill sets needed for a successful mediation, as compared to a trial.
At trial, the litigator’s primary audience is the judge and jury. The only real goal at trial is to persuade the judge or jury to rule and find in your favor. By contrast, at mediation, the litigator has at least three audiences, each having the power to affect its outcome: (1) opposing party; (2) your client; and (3) the mediator. If the case involves multiple parties or insurance carriers, the number of audiences may be still greater.
During the course of a mediation, the effective litigator needs to communicate to each of these audiences, who come with different goals, perspectives, and motivations. The message you send to each will be different and may seemingly conflict (e.g., opposing party needs to know the strength of your position; your client needs to understand its weakness). The challenge and art of mediation is to deliver these multiple messages, simultaneously or in tandem, while at the same time being persuasive, truthful and credible.
Continue reading The McNaughton Rules: The Three Hats You Wear in Mediation