To help lawyers refine their mediation skills, three experienced mediators – Steve Lancken, managing director at Negocio Resolutions; Nicole Davidson, principal at Nicole Davidson Negotiation; and Michael Mills, principal, lawyer, and mediator at Solve Resolve – have highlighted key skills that practitioners should cultivate and integrate into their practices.

How to make an offer

Due to how an offer is present that can influence the outcome of mediation, Lancken shared practical strategies that will assist lawyers in effectively navigating this critical aspect effectively.

Lancken strongly advises lawyers to avoid using phrases like “take it or leave it”, as these can stifle negotiations and lead to counter-threats, which undermine the chances of finding a mutually beneficial solution.

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He pointed out that “offers are invitations to treat, not demands or ultimatums. If rejected, they do not have to be offered again.”

Lancken added: “Starting the negotiation ‘dance’ is the most difficult. No one accepts the first offer (OK, it happened once in my 25-year career as a mediator). Indeed, in my experience, many more people have walked out of mediation while reacting to what they perceive as (in their words) a ‘ludicrous first offer’ than have said yes and accepted that first offer.”

An essential skill that Lancken emphasised for lawyers to attain is articulating the rationale behind an offer. By providing context for the offer, he explained, lawyers can illustrate to their counterparts that the proposal is both reasonable and grounded in sound reasoning.

“When making a first offer (and sometimes the second or third), it is valuable to explain how you arrive at the numbers; a compromise is not essential, but some indication of the legitimacy of an offer is. The assumptions made, the impact of costs, etc., are all factors that are not going to show weakness, nor give away a client’s case if you have to go to trial,” Lancken said.

Understand your client’s best interests

Although legal professionals are often trained to analyse cases purely from a legal perspective, Davidson stressed that lawyers need to recognise the significance of acting in their client’s best interests.

Davidson emphasised that lawyers must remember that “the best interests of the client go beyond their best legal interests”.

While presenting a robust case is the ultimate goal for many lawyers, Davidson noted how important it is for lawyers to realise that for many clients, the emotional and financial implications of litigation are of greater concern.

“A defendant may have the best case in the world, but if it’s going to leave them thousands of dollars out of pocket to defend the claim, their overall interests may justify giving some or most of that money to the plaintiff, saving the time, stress and uncertainty of continuing litigation,” Davidson said.

Davidson explained the importance of recognising that what may be in one’s best interests may not necessarily align with the client’s interests.

“What may be a great experience for the lawyer, especially when they get to publish articles about particularly challenging cases, generally, the client will be much happier if they can get a quick, reasonable outcome that doesn’t cost the earth and lets them get on with their business or their life,” Davidson said.

Gain experience

Mills asserted that gaining experience is vital for lawyers aspiring to become proficient mediators, particularly those who are new to the field.

“For the inexperienced, new, or novice mediators – obtain as much experience as you can. Many experienced mediators are open to talking to the parties and seeking their consent to have another person training as a mediator sit in,” Mills said.

He advocates that one of the most effective methods for acquiring practical experience is “shadowing” seasoned mediators to observe their operational techniques and methods.

“‘Shadowing’ experienced mediators in such a manner is a great way to enhance your skills, especially if you can do this with several different mediators,” Mills said.

In addition to gaining direct experience, Mills advises emerging mediators to engage in debriefing sessions with the mediator following the mediation process, as it not only facilitates skill enhancement but also provides an opportunity to clarify any uncertainties.

“Also, don’t feel shy in asking the mediator if you could spend 10-15 minutes post the mediation on a debrief session. Most will also be happy to do so and welcome your questions and discussion of why they adopted the approach they did in the various circumstances, queries, and issues [that] can arise in a mediation,” Mills said.

Adapting how you communicate

Though attorneys are trained to advocate for their clients in an adversarial framework, Lancken emphasised the necessity of modifying their communication strategies to align with the mediation context.

“Lawyers are trained as advocates. They are good at making submissions to a judge or tribunal member about the merits of their client’s case.

“These skills are adaptable to mediation, so long as the lawyer’s repertoire is expanded to account for the differences between convincing a judge and discussing with the ‘opposing lawyer’ (in the presence of clients) the legal issues in the case,” Lancken said.

Lancken proposed that framing discussions within the mediation context as an explanation rather than as an argument allows attorneys to encourage the opposing party to share their perspectives.

He explained this approach is beneficial as it fosters a more constructive and collaborative atmosphere, facilitating better outcomes for all parties involved.

“Instead of ‘arguing the case’ at the mediation table, my suggestion is to lawyers frame the conversation as ‘explaining their case theory’. The subtle difference in frame is more likely to evoke a different type of conversation, not an argument in front of your client.

“Using this frame invites the other party to share their case theory without the need to prove you are wrong (even if that was possible),” Lancken said.

More to come.