Colorado courts and legislation encourage parties first to seek to resolve their differences through mediation, which is considered a less expensive means of solving a dispute than trial. Yet lawyers and their clients often look at mediation only as a hurdle to clear before they can actually win a case at trial.
Lawyers, you have all been there: 50 emails demanding immediate response, back to back deadlines in multiple matters and a mediation date rapidly approaching. The temptation is to wing it. Letting the mediator sort things out is seductive. Before you just change the date on your original demand letter and phone in your performance, try thinking of mediation as an opportunity to practice your trial skills and use those skills to resolve your case more favorably.
The Problem: Trial skills taught in law school and at post law school trial programs help lawyers develop a persuasion “muscle memory” they can call upon in trial. But because fewer than 5 percent of cases actually get to trial, lawyers rarely get to practice their trial skills in a courtroom. The majority settle somewhere between filing and the courthouse steps.
Stetson University College of Law recognizes this reality on its website — advertising a course called Civil Litigation and ADR. “Most cases are resolved before trial. . . . [T]rial lawyers . . . spend much of their time on deposing witnesses, pre-trial discovery of facts, negotiating and strategizing litigation, writing briefs and filing motions. Although not every case leads to a trial, [lawyers] must have the skills (and confidence) to try a case before a judge or jury . . . .”
So how do lawyers get those skills and acquire that confidence if they never see the inside of a courthouse?
The Solution (for Clients and Lawyers): Mediation provides the perfect opportunity to practice many trial skills. Recognizing the parallels keeps lawyers from squandering that opportunity; they can hone their advocacy skills and get better settlement results at the same time.
More Than a Few Skill Set Parallels
Preparation: The key to a winning trial strategy is developing a theme and theory of the case that tells a persuasive story. The best trial lawyers diligently prepare far in advance of trial, thoughtfully analyzing the facts and law, developing a logical and compelling “theme” for the case, organizing the presentation for maximum persuasion, anticipating and neutralizing weak points and staying flexible by developing fall back positions.
These trial skills make for a “winning” mediation strategy as well. The best lawyers prepare the settlement position paper and the client in advance, decide upon the legal and factual story they mean to tell, marshal the evidence for the most effective presentation, anticipate and plan for case weaknesses and think deftly about fallback positions.
As added value, preparing clients for mediation is a critical skill that also helps prepare them for deposition or trial.
Opening statement: Mediators aren’t complewtely like jurors; they’re legally educated, less likely to need spoon feeding, not as susceptible to emotional appeals — right? Well, maybe not so much. There’s a huge overlap between the skills required to deliver a powerful opening statement and those required to write an engaging position paper. Bonus: The position paper is written; for many of us, writing is far easier than public speaking/storytelling/opening statement.
When I teach, I remind attorneys that opening is their first chance to capture the jurors’ hearts and minds, to establish credibility and to develop a factual focus. I urge them to employ the theory of primacy: this is fact finder’s first impression and they are at peak attention.
In teaching settlement strategy, my advice doesn’t vary. Lawyers must deliver a position paper that predisposes the mediator to begin the day in their camp. Just as they would for the jury, they need to tell the mediator a compelling story with a clear theme that clarifies:
- What happened and why it happened.
- What were the immediate and long-term harms?
- Who committed the wrong and why? Or why are we being accused and why we should not be here?
- What is wrong with the defense? Or how the plaintiff is mistaken and wrong to accuse us?
- How do I set the situation straight?
And, as they would in closing, in a position paper, lawyers need to tackle the weakness up front, so they can “defang” opposing counsel’s arguments.
Closing: The attorney’s task at closing is to assist the factfinder to make sense of the facts and the law (often spelled out in the form of jury instructions). Once the lawyer arrives at the mediation conference, their job is akin to delivering an extended closing argument. The lawyer will be called upon to help the mediator (jury) answer the question, “How do I make sense of all this stuff — witness statements, pleadings and exhibits?” Just as they would in closing, the lawyer can:
- Use stories and examples to link the law to the facts.
- Anticipate problems (conflicts in evidence, waffling witnesses) and offer solutions (draw inferences, reconcile conflicts, be a creative problem solver).
- Discuss and help the mediator (jury) to apply new or unexpected information to get the result sought (e.g., discuss legal precedent or similar case outcomes).
Mediation and Trial are Both Forms of Dispute Resolution: Teachers of legal advocacy have long sought a more client-centered approach to dispute resolution, whether the dispute is resolved by settlement at mediation or by jury trial. Mediation is a client-centered, problem solving process, and the skills developed in mediation will translate fully to a lawyer’s advantage if ever they are fortunate enough to go to trial, i.e., the less frequent “alternative” method of dispute resolution.
— Robbie Barr is the sole proprietor at BarrADR.