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.

Mediation may be the first and only time you may communicate directly to opposing party. Your goal here is not to “win” the case, but to convince your opponent to change his or her settlement position. To do so, you must view things from your opponent’s perspective, identify his or her motivations, and fashion your message accordingly. Mediation is not the time to launch personal attacks. They are counterproductive and will strengthen your opponent’s resolve.

Mediation is also the time for your most meaningful attorney-client communications. Typically, you will spend a full day with your client who will look to you for advice and leadership. It is important to demonstrate to your client that you will vigorously and competently advocate for his or her position. Before agreeing to settle, many clients simply want their “day in court,” which to them may simply mean a forum to tell their story to a neutral and to the other side. Often the mediation itself serves that need. If so, let it. It is equally important (and your duty) to fully inform your client (in break-out sessions) of the risks and costs associated with not settling. Do not minimize this for fear of appearing to be a weak advocate.

Finally, although mediators aspire to reach an outcome that is fair and reflective of the parties’ relative positions, in the end, the mediator’s primary goal is to reach a settlement. To do so, the mediator will pressure the side of least resistance. A mediator will not just hear what you say, but will look for any sign of an opening. When interacting with the mediator, your most important asset is your credibility. If you are truthful and consistent, the mediator is more likely to accept your client’s boundaries when working on the other side to achieve a settlement.