Taking Full Advantage of the Mediation Potentials

August 19, 2008 · Filed Under Mediation - General · Comment 

                                    By Dave Finch           

The mediation process is a flexible and expandable one in which the full range of the trial lawyer’s skills can be used to profitable effect.   The extent to which those skills are used affects the potentials for a mutually agreeable resolution.

            Many lawyers have realized that mediation presents a unique opportunity for a persuasive presentation to the opposition in a setting conducive to being really heard.  When there is an appellate decision that establishes a key point, here is a chance to make sure the opposition understands it.  Where there is physical evidence that would powerfully affect the thinking of a jury, why not show it here?  If an evidentiary issue calls for special expertise, where better than here in mediation to let your expert advance and enhance your argument?   Helpful deposition testimony can also be displayed to good effect here.  The advocate may want to save a surprise or two for trial, but mediation offers an abundance of opportunities for the effective communication of the strengths of one’s case.

            Skillful negotiation also involves empathetic listening to the opposition, for this enables the advocate to better focus the argument and show that s/he is prepared to deal with the strong as well as the weak opposition points.

            Your opposition will be far more amenable to resolution when your argument has been presented with a clarity that cannot be missed or under-evaluated.  And a negotiator enjoys greater respect, who listens attentively and offers a focused response.