Training for the table or the trial - 7 mediation skills every attorney can use

Mediators and attorneys play different roles within our legal system for dispute resolution. One is a neutral, the other an advocate. They have distinct functions, approaches, processes and training. (Although many mediators are attorneys, a law degree is not required.)

Mediators are trained to diffuse conflict, open the lines of communication, facilitate dialogue and parties find common ground. Their work centers on building trust, navigating complex interpersonal dynamics, fostering mutually satisfying compromise and bridging divides.

Lawyers are trained to analyze cases and laws, assemble evidence and advocate for their clients' interests. It is inherently adversarial by nature.

Fundamentally, though, the goals of the mediator and the attorney are the same: They both want to help their clients navigate conflict smoothly and effectively, achieving the most positive outcome possible. They're both in the business of assisting people during times of discord and intense stress, when stakes are high and emotions raw.

Not only is there a significant overlap in their necessary skill sets--particularly the so-called "soft skills"--but many mediation techniques are well-suited to the goals and values of emerging attorneys today: empathy, purpose, pragmatic problem-solving and social impact. 

Integrating key mediation techniques can help lawyers hone their negotiation skills, become more effective at trial, and, most importantly, counsel their clients better.

1. Beneath the surface, between the lines

Mediators learn to listen not only to what is said but what's left unsaid-- the subtext. We try to gently peel back the layers and get to the root of what our clients want. Sometimes we can coax them to articulate it; sometimes it's evident in subtle body language or emotional cues.

For attorneys, this kind of deep listening is powerful because it builds trust with your client. It uncovers unspoken feelings, values, desires, hopes and priorities. It also makes negotiation more effective--when clients feel genuinely heard and understood, they're often more open to practical advice and smart settlement options.

2. What's this really about? Positions vs. Interests

Rather than focusing on the what--the parties' staunch demands or "positions"--mediators look for the why--their "interests," which are the underlying issues and needs, or what the client feels is at stake. "I demand $200,000!" is a position; "I'm worried about losing my home" is an interest. This is a useful lens for attorneys as well. It can help them craft balanced, creative proposals that satisfy the opposing party while staying focused on their client's priorities.

3. Let's put it this way

Mediators are skilled at reframing heated, confrontational statements and hardline positions into interest-based language that makes way for constructive conversation and innovative solutions. Reframing is the skill of taking emotional, positional or accusatory statements and restating them in a neutral, interest-based and forward-looking language so that the conversation can move productively. Reframing does not change meaning; it changes tone, focus and impact. With their clients--or opposing parties--attorneys can use the same approach. Reframing helps de-escalate conflict and redirect destructive energy towards productive problem-solving, which is most important to the client; this can allow for more strategic negotiations.

4. Turning down the temperature

Typically, by the time someone realizes they need an attorney or a mediator, a conflict has ratcheted up, and feelings are running high. Unfortunately, runaway emotions not only reveal the worst side of people but also disrupt their ability to think rationally, identify and focus on issues, and communicate clearly.

Experienced mediators are adept at many techniques that help keep emotions in check: creating a safe, supportive, private environment, laying ground rules for discussion, validating feelings, showing empathy for both sides, reframing hostile language, asking open-ended questions, redirecting, taking cool-off breaks, and other methods of keeping a session productive. Skilled mediators maintain mastery over their emotions. They mentally prepare and respond thoughtfully and intentionally, so they can serve as a calm, steady presence in the mediation room.

Attorneys also benefit from managing emotions--their client's, the opposing party's and their own. Keeping a cool head under pressure helps maintain everyone's credibility before a judge or jury, and keeps negotiations on track.

5. Good question

Mediators are skilled questioners in a somewhat different way than attorneys. Mediators ask non-leading, open-ended questions to draw out the parties, promote clarity, and help them articulate their needs. Much of a mediator's work involves deep listening, followed by distilling what is said into a clear and concise summary of what the party wants.

This is a useful tactic for attorneys at many stages of the legal process; it builds trust, uncovers more of the real story and can yield unexpected solutions. For example, instead of asking a client if they'll settle for $100,000, they can ask, "What is your goal?" Asking these questions allows the client to focus on future outcomes and resolution rather than remaining stuck on past grievances. You may be surprised by what they really value.

6. Use your imagination

Mediation, in both purpose and process, encourages parties to reach nuanced, highly personalized solutions--not just straightforward, conventional legal remedies. In many cases, resolution involves a tailored combination of interpersonal factors with practical measures and/or financial compensation. A strategic attorney can incorporate this kind of inventive and layered strategizing in settlement negotiations, securing satisfying results for clients while earning a reputation as a dynamic, dependable problem-solver.

7. Give it a minute

Mediators understand that patience and persistence pay off. Resolutions are not always reached in a single session--breakthroughs come with time and trust. Whether it's taking a small break to take a deep breath and a step back, or returning to the table another day, slowing things down can actually speed them up and improve results. A calmer process is frequently more efficient and effective.

For lawyers, this principle illustrates that while assertiveness is good--when you're negotiating a settlement or persuading a jury--prioritizing patience and restraint over force can encourage more thoughtful analysis of the facts and more rational decision-making.

In mediation, the nature and tone of the process are as important as the outcome because they, in fact, shape it.

For obvious reasons, both mediators and attorneys typically meet clients in very difficult moments, when the parties may not be at their best. They're often angry, emotional, reactive and vulnerable. Whether we're advocates or impartial third parties--trained as fighters or peacemakers--to serve our clients well, we must, first and foremost, establish a foundation of trust.

It begins with an environment in which they feel safe, free, open, heard, understood, validated and empowered. This paves the way for a calmer, more rational, creative, holistic and human-centered pursuit of a solution--and ultimately, more positive and satisfying outcomes at the mediation table or in the courtroom.