Good lawyering advances successful outcomes for our clients in both litigation and ADR. But the skills that work in trial-like settings (litigation and arbitration) are different from those that work in mediation. The German general Clausewitz reputedly said that “war is politics by other means.” Lawyers who approach mediation as if it were litigation “by other means” miss the opportunity to achieve better outcomes for their clients.
Years of experience with mediation, both as a labor-and-employment lawyer and, for over twenty years, as a court-appointed mediator, teaches me that with respect to mediation outcomes, right is irrelevant—or nearly so. Mediators do, of course, need to know at the outset what each side’s legal position is, but that alone does little to produce a successful outcome from the client’s perspective. Lawyers who approach mediation trying to convince the mediator that their side is “right”—that their side will ultimately prevail on the legal merits of the dispute—are largely wasting their time.
