From the Playing Field to the Mediation Room: How 5 Coaching Skills Work in Mediation
What makes a good mediator? Patience. Listening skills. Negotiation skills. More patience. An ability to connect with different types of people from diverse backgrounds. And most of all, an ability to help push the parties across the finish line.
A good mediator doesn’t mediate in a vacuum. Rather, he or she brings life experience to the mediation room and uses that experience to help parties resolve their disputes. As a mediator, I certainly draw on my experience as a football and lacrosse coach, and I have found there are many parallels between a successful team and a successful mediation. Below are some of the coaching skills that I have found effective in the mediation context.
Just as a coach strives to have his or her players work as a team, there is a fundamentally common thread of teamwork in successful mediations. To be an effective mediator, there should be teamwork not only between you and counsel but between individual attorneys and their clients as well. If you’re a lawyer, you want to have a good working relationship with your client and ensure that your client knows what to expect before and during the mediation. I saw a great example of this at a recent mediation. The plaintiff’s attorney had prepared detailed spreadsheets that showed the total that the client would receive after medical bills, attorney’s fees, and other expenses were taken out for the different amounts the defendant was likely to offer. This kind of legwork helped the mediation itself go smoothly.
I play up the idea of teamwork at every mediation I conduct. I’ll start by saying something like during litigation, we may be on different teams but in a mediation, we are all on the same team here and everyone has the same goal — a reasonable resolution to the dispute. That means that we have to work together, and there has to be give and take. If one side moves and makes a good faith offer, you don’t nudge it — you have to make a good faith response, or else they will throttle back.
A coach needs to prepare his or her team for the game. In mediation, that means getting the necessary documents to the other side at least two weeks ahead of time. I see this frequently in mediation when the plaintiff’s attorney brings addition medical bills to the mediation. That’s a problem because the insurance adjuster must get a number approved before the mediation. When the plaintiff increases the value of the case by $25,000, $50,000 or $100,000 worth of medical bills, the defense will have to reevaluate the case, and that may derail the mediation before it starts. Remember, if you can’t get the relevant documents to the other side in time for the attorney to review them, you can always consider rescheduling the mediation.
Good coaches also have excellent communication skills. Just as a coach communicates plays to players, lawyers must communicate to the mediator what they want, recognizing that they’re not going to get what they might get at trial if they got a verdict in their favor. And you must also clearly communicate the strengths and weaknesses of your case to your client before the mediation so that your client isn’t ambushed by the other side’s opening statement.
On the field, the coach, and the players, must have their heads “in the game.” The same goes for a mediation; you need to be in the mediation mindset, to be prepared like a team is prepared to win. This isn’t the time to take calls on other cases or have associates bring you briefs from other cases. This kind of behavior shows your clients you’re too busy for them, and it shows the mediator that you’re not viewing the mediation as important. Focus on the mediation and you’re likely to get better results.
Finally, as a coach, you may have a game plan, but sometimes that plan has to change. You may have to change on the fly, and your team must be malleable when a game ebbs and flows. It’s the same at mediation.
Say you’re coaching a football team that is down by five touchdowns at the half. All you can do is analyze what can be done better. It’s one score at a time — you’re not going to score 35 points all at once, so you want to emphasize on focusing on a small win to develop confidence, and then getting a second one and then a third one. There will be steps back.
In the mediation context, if the parties are far apart and stuck on numbers, you may look to get a small win. Can you agree on liability or that the defendant was in the scope of employment at the time of the accident in a personal injury case? Focusing on the disposing of a side issue may create a small win that helps save the litigants time and money and can create some positive momentum.
A coach is there to encourage his or her players and to help them perform well. A mediator has a similar role — to encourage the parties; to listen to them; and to help them get where they need to be. Thinking of yourself as a coach the next time you’re mediating a case can help the attorneys you work with score a settlement that works for both teams.
About Christopher Smith
Christopher “Smitty” Smith focuses his mediation practice on complex business disputes, construction law, and catastrophic personal injury. As a partner with Hunter Maclean, Smitty serves as the leader of the firm’s Transportation Group. He has tried numerous cases across the country and was nominated to the American Board of Trial Advocates in 2012. He is listed in The Best Lawyers in America and has been named one of Georgia Trend’s Legal Elite as well as a top attorney by Savannah Magazine. He is a graduate of both Leadership Savannah and the State Bar of Georgia’s Leadership Academy. With 20 years of litigation experience, Smitty has participated in more than one hundred mediations and has been a registered neutral with the Georgia Commission on Dispute Resolution since 2012.