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May 6, 2014

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Thinking Like a Lawyer vs. Thinking Like a Mediator

by contributor
time to mediate
Learn about the psychological transition from being a lawyer-advocate to being a mediator.

time to mediateRemember in law school how they taught you to “think like a lawyer?” You were conditioned to think analytically, strategically, some might say paranoically. After all, devoting your mental powers to protecting your client’s interests at all costs is your supreme duty as a lawyer.

The problem is that thinking like a lawyer can be an impediment outside the narrow confines of planning and executing a client’s case or transaction. In fact, most people — even lawyers — are suspicious and even antagonistic when they perceive someone as thinking like a lawyer. The defensive, self-interested, mechanical nature of thinking like a lawyer is anathema to civil behavior in daily life.

Since most of us play roles in our careers other than strictly as advocates for one side, it’s sometimes necessary to turn down the think-like-a-lawyer dial — maybe even to zero. One area in which many of us choose to serve is dispute resolution, usually as arbitrators or mediators. Much of my work over the past several years has been in this area. It’s been a challenging but rewarding exercise to learn when to think like a lawyer and when not to while serving in this capacity. In this post, I’ll share a few things I’ve learned about the psychological transition from being a lawyer-advocate to being a mediator. In a follow-up, I’ll address the same issue with respect to serving as an arbitrator.

There are two sides to every story.

This is something you immediately learn as a mediator, in a way that doesn’t hit home when you’re an advocate. As a lawyer representing your client, you view the opposing party in the abstract. You marshal the best evidence to support your case, construct the most persuasive arguments to spin things your way, and counter the anticipated arguments of the other side. But aside from perhaps in the controlled environment of a deposition, you won’t likely encounter the opposing party in person. By contrast, when serving as a mediator you will meet both parties in person and likely be privy to at least some of their private thoughts. Despite whatever preconceived notions you might have had, you will quickly realize there is more to each side than meets the eye.

Lesson: Control your lawyerly instinct to analyze and evaluate. Instead, spend time listening and understanding what people really expect from the mediation process and what they hope to accomplish through it.  Let that be your outline for negotiations.

You can’t fall back on structure, rules, or authority. 

As a lawyer engaged in litigation, you always have a legal hammer to deploy when the opponent won’t cooperate or doesn’t see things your way: You can issue a subpoena, file a motion, ask the court for sanctions, etc. But mediation generally has no procedural rules, no penalties to impose, no robed authority waiting in the wings to lay down the law if necessary. The only authority you have as a mediator is the desire of the parties to voluntarily resolve their issues without resorting to further legal action.

Lesson: Get used to the slightly disorienting feeling of open-ended discussion and negotiation. Use the parties’ desire for resolution (and, usually, abhorrence for further litigation) to discover common ground and identify possible solutions.

It usually comes down to money, which doesn’t grow on trees.

Let’s face it: The resolution to most legal disputes in civil law involves one party paying money to the other. Having practiced largely in the field of personal injury, I’m spoiled by the fact that most of my cases as a lawyer have involved at least one deep pocket — an insurance company, corporation, or government entity with enough cash to pay fair compensation to the injured party. The challenge of agreeing on what’s reasonable is the hard part, of course, but at least the money to settle the matter exists. By contrast, I mediate cases in a variety of practice areas, and in many instances, the lack of money available to be paid is a major factor in whether the case will settle.

Lesson: Don’t be afraid to talk about money from the start. Although you don’t want to short-circuit the give-and-take of bargaining, find out as soon as possible whether money sufficient to settle the case exists at all. Or figure out whether non-monetary concessions can make up the difference.  Don’t waste hours arguing over other issues if there is no likelihood of settlement because of financial factors.

If it doesn’t come down to money, it comes down to emotions.

Some mediations are businesslike, which is comfortable for most lawyer-advocates. For example, two deep-pocket parties divvying up responsibility between them in a commercial dispute may come down to fairly simple bargaining. But many mediations involve addressing the emotional needs of one or more parties, in addition to the finances involved. In personal injury cases, for example, the defendant’s financial responsibility is usually covered by an insurance company, which is essentially making a business decision on how much to offer the plaintiff based on a projection of the damages that would be awarded at trial. For the plaintiff, on the other hand, the settlement means more than simply evaluating how many dollars a jury might award. The plaintiff will need to sign off on the emotional resolution of the case as well as the financial one.  Facilitating that process isn’t something they teach in law school.

Lesson: Your job as a mediator is to steer the parties toward settlement using your experience and knowledge of the law, but without telling them what to do or underestimating their emotional connection to the case. Giving them a chance to express their feelings, explain themselves, and rant to you early on often clears the way for the more businesslike negotiating that will eventually settle the dispute.

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