Are Trial Advocacy and Mediation Advocacy Different?
The reality is that while most lawsuits will eventually settle, few trial lawyers seem to focus on developing their negotiation skills as much as they do their trial advocacy skills. On the other hand, an advocate in a mediation setting must often have bona fide trial skills to earn respect as a negotiator.
A lawyer talented and experienced in both trial and ADR advocacy is almost always going to be a formidable adversary who remembers than an ADR proceeding or mediation has an entirely different objective than a trial.
The ultimate goal in both trial and ADR proceedings may be to make a final determination of a dispute. But at trial, an advocate must convince a neutral trier of fact that an outcome or decision is fair, just and supported by the evidence. In ADR, an advocate must be persuasive enough to not only convince the adversary, but often even the advocate's own client, that a result is ultimately in the client's best interest. This sometimes means that the result is not necessarily fair or just from the perspective of the client.
No mediation strategy can be developed strategically without first obtaining a sufficient amount of relevant information. An advocate in a Texas mediation setting should always come to the mediation prepared with at least a tentative assessment of trial outcomes ranges and a realistic analysis of the likelihood of prevailing.
There is credible research that suggests that human beings are often by nature overly optimistic about their chances of prevailing at trial. Sometimes that confidence wanes as the call to trial day approaches and someone has waited too long to actually evaluate their case properly or look at their case dispassionately. The best time and opportunity for the advocates to be reminded of this tendency is at mediation, when a neutral third party mediator is available to help with the heavy lifting of making ever party and attorney in attendance see their cases clearly and rationally.
Rational thought should not have to wait until the eve of trial and much more time and money have been spent. An experienced trial advocate should know that mediation advocacy is often the first realistic chance the attorney has to help make the client see things with clear eyes in a non-emotional manner.
The ten foot tall and bullet proof advocacy approach for the benefit of the client may be required 100% of the time at trial. But in private sessions at a mediation, an advocate should always be realistic with the client about how things can go wrong at trial, which takes a different type of advocacy and persuasion.
Learn how we can help you with your own mediation needs.