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 ling 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 ling 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 completely 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.