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Trial Advocacy v. Mediation Admission, Concession and Conciliation

February 12, 2016

The Korean War is perceived by most of the public to be long “over”; just another page in history.  In stark reality, however, that 1950’s war has never officially ended, but rather still, legally, smolders on.   The battleground, long ago, simply switched from the battlefield to the negotiation table.

But, now, over a half-century later and because one negotiating side or the other (or both?) can never stop solely advocating their own position to the total exclusion of any of their opponents’ positions, resolution of this war seems more distant than ever.  “Saving face” long ago became more important than settlement.  No act of significant concession toward a conciliatory effort by either side was deemed a worthwhile negotiation tactic.  Worse, any suggested effort at reasonable compromise was perceived by both sides as a kind of weakness rather than a good faith first step toward conciliation and thus rejected.  And, this long ongoing one-sided advocacy-only approach, over time, only added to the  total  inability of these opponents to even try any real change in their previously failed negotiation technique.

In the absence of a mutual change in mediation technique, ending the  “advocacy-only” approach and beginning more successful conciliatory negotiation, it is likely this half-century “war” may never be ended.

Question:  Is this the world’s worst mediation effort or a great opportunity to learn from others’ mediation technique mistakes?

Many very competent litigators, on both “sides” (and many repetitive mediation party-participants), seem to suffer from this same advocacy-only mediation negotiation technique.  Maybe they truly believe it is effective in a voluntary negotiation setting.   Maybe they believe non-adversarial techniques will be perceived as weakness?

Perhaps, running on habit or even a jaded history, some simply cannot “turn-off” their one-sided general view of how to negotiate with all opponents long enough to adapt to new ones with each new case,  party or opposing counsel.  See, “Leave Your Guns at Home”, August 13, 2011

Trust me, while “advocacy-only” can work at trial, it doesn’t work in mediation..

Regardless,  clearly many excellent trial lawyer advocates have a difficult time in mediation with learning and then skillfully using non-advocacy processes that are designed so differently to artfully seek a valid compromise that can be (ultimately for one side or the other) actually BETTER than trial.

Trial lawyers are initially hired solely to advocate their client’s position.  Part of that ultimate advocacy, however, is to first investigate and advise their client as to the strength and weaknesses of the client’s position.  However, once their client is fully advised, it then becomes the trial lawyer’s duty to advocate at trial only the strengths of the client’s position, while minimizing any weaknesses.

The audience listening to this trial lawyer at trial is either a judge or jury and they at least begin listening as a neutral.

But, there is NO judge or jury in mediation.  The audience for the mediation lawyer is sitting on the other side of the table and they are not neutral!  If anything, they are quite prepared to advocate their position totally to the exclusion of yours. Accordingly, resolution WITHOUT trial requires a totally different skill set for those who wish to succeed in mediation and negotiation: the skills of  admission, concession, reasonableness, patience and the art of compromise.

Most trial lawyers already have many of these non-trial skills, they are just a bit under used in their usual daily work.

Non-trial lawyers, however, use these skills all of the time.  In fact, they are likely the same conciliatory skills that get them hired.  And they are certainly many of the skills that reward them with repeat business!

Maybe it is time to consider a specified division of labor between “trial” lawyers and other skilled lawyers who will now specialize in negotiation and mediation.  Many non-lawyers who are frequently in mediation literally specialize in this craft.  And become quite good at what they do.

Separation of duties between the two disparate fields of legal practice could also reduce the friction between perhaps now competing duties of advocacy and conciliation.  Such a practical division might also become a bit of a parallel to the British system of  Barristers and Solicitors?

If not, and soon, can litigators at least leave some of their advocacy in their trial bag, focus on the fundamental difference between advocacy at trial and mediation, while striving to learn, equally well, the skills of  admission, concession, patience, reasonableness  and compromise in negotiation in Mediation?

Borrowing from Rick, such a change “could be the beginning of a wonderful friendship”*.

Happy Valentines Day!

Dan, from Inverness, Florida.  (*See, Casablanca)



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