Mediation Top 10

I recently completed the Florida Supreme Court training to become a Certified Circuit/Civil Mediator.  The training taught me many things about serving as a mediator, which are also applicable in any negotiation. Some of these seem obvious, but are worth repeating and I hope are helpful to you.

1. Listen more than you talk.  This is really hard for lawyers, especially, litigators, but it is critical.  Ever notice the best negotiators seem to say the least.
2. Ask questions rather than make statements.  This is not only a great way to gather information, it is also a great way to help the litigants or the opposing party or lawyer come to a conclusion you want on his/her own.
3. Get the other side/the parties to talk.  This seems obvious, but the more information you gather, the more potential options become available.  For example, during an exercise in mediation training involving a dispute between a landlord and tenant, getting the sides to talk revealed the landlord owned multiple properties, which created an opportunity to craft resolutions that were not apparent at first.
4. Be creative.  Often in negotiation or mediation, there are many ways to get to the same goal, but the negotiators lose sight of the possibilities by being too focused on what is right in front of them.  Do not be afraid to explore the options.
5. It is not only about the money.  I know, the money always seems to be the focus in almost every negotiation, but do not ignore the non-monetary terms.  In my world of patent, trademark, copyright, computer and internet matters, the scope of a license or an injunction is often more important than the monetary terms.
6. Step back and look at the big picture.  The first thing to figure out is what is globally driving the discussion or dispute.  For example, going back to our landlord tenant dispute, the first question to ask is does the landlord want the tenant to remain in the property and does the tenant want the same thing?  The answer to these big picture questions should frame the entire negotiation.
7. Do not play dirty pool.  This is another that seems obvious, because sadly too many negotiators will engage in dishonest or disingenuous conduct.  Since dishonesty always seems to come back in some form, play clean.
8. Pay Attention to body language.  Invest time and effort in watching the physical reactions and body language in the room. Often you will be able to tell if someone is uncomfortable, anxious or angry.  This is valuable information.
9. Ask questions rather than make statements. This is good advice in all aspects of our lives and if you do not think so, ask your spouse or significant other.
10. Listen more than you talk.  This and number 9 are so important that they really bear repeating, especially since lawyers often struggle with both.