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ADR Series Part 2 – Mediation and Endless Curiosity

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adr_post_2This post is written by guest blogger: Shahrad Milanfar.

Many view Mediation and Trial work as two separate and unrelated events requiring totally different skill sets. This perspective is not exactly accurate because, at their core, mediation and trial work have one thing in common. Both processes are about Persuasion.

If a trial lawyer can’t connect with and persuade a jury, s/he loses the case. At mediation, if the mediator and the lawyers can’t persuade each other that it is in everyone’s best interest to settle, then the mediation process is unlikely to succeed.

As a faculty member teaching in the NITA trial training and  deposition training programs, I and the other faculty members help the participants understand that success in trial requires persuading the jury to see the case from their client’s perspective. This is done by presenting their case in a concise manner, through good questioning and argument, with good timing. This approach elicits empathy and understanding among jurors. The most effective trial lawyers (who clearly follow the NITA principles) know how to speak simply, what questions to ask, and when. They do a fantastic job of telling a story that resonates with the jurors and provides the jurors a “road map” for what they believe is the correct result.

As a mediator, mediation instructor & practicing litigation attorney, I have a unique perspective about the litigation and mediation process. I have worked as a plaintiff’s attorney, and a defense attorney in catastrophic injury cases. I have represented family members in litigation, and been a plaintiff in a real estate fraud case. As I tell my litigation and mediation clients, I have personally sat in virtually every seat in the mediation room and can literally shift my focus to every perspective in the room to find the path to success. Why am I telling you this? I’m telling you this because I firmly believe that the same skills we learn in the NITA programs and utilize in a courtroom are transferrable and applicable to the mediation setting.

Many times attorneys come to mediation and use the opportunity to try to scare the heck out of the opponent into settling. Yet, I have never seen this tactic work, as a mediator, because people rarely settle out of fear. They typically settle because they see value in the settlement. The effective attorneys do a great job of asking good, open-ended, questions and really trying to understand the other side’s perspective because this gives them insight into how to reach a settlement agreement. This skill is similar to the NITA funnel technique, which encourages lawyers to ask broad questions and allow the other side to tell their story. The attorneys and mediator can also use the same skills they employ in building rapport, while giving witnesses deposition admonitions. As we know from our NITA training, admonitions are used to set the ground rules and build rapport with witnesses. This allows for a much better flow of information.

Asking great questions and building rapport is also crucial to mediators because it allows the parties to tell their own stories and eventually acknowledge that settlement is the best alternative to a negotiated agreement (BATNA). I can’t count the number of times I’ve asked a good question at mediation which later helped get the parties to an agreement.

So, how can you apply your trial skills to mediation? Here are a few suggestions:

1. Always prepare. Make sure you talk to your clients about the process, about the people, about the law. Make sure that your clients understand that they are there to work hard and solve a problem. This may mean answering tough questions and making difficult choices.

2. Consider what open-ended questions you can ask the other parties and the mediator about ideas, which may move the case toward resolution. Encourage the mediator to do the same.

3. Remember that life is about relationships and others will work with you because they are persuaded by you and not because they are scared of you.

4. Last but not least, make sure that you listen for and hear what the other party needs to walk away from the mediation with a settlement agreement and not simply walk out on the mediation. The ability to read between the lines is a skill all great mediators and trial lawyers must possess.

In order to speak, one must first listen. Learn to speak by listening.

~ Mevlana Rumi

Build castles with your words. Don’t dig graves.

~ David Schwartz

You can follow Shahrad Milanfar on twitter here: @CaMediation and read more on his blog:

Previous posts in this series:

Upcoming posts in this series:

  • Part 3 – Negotiation and the insecurities over losing control
  • Part 4 – Arbitration and the art of witness examination
  • Part 5 – The ADR practitioner and the trial skill set

You can join in our LinkedIn discussion on the ADR topic here!

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