As a mediator, I've had the privilege of working with some of the best legal minds in the field. These attorneys are excellent advocates for their clients, skilled in presenting their case and highlighting its strengths. However, there’s a critical difference between being a great litigator and a great negotiator. Too often, I see lawyers spend too much time at mediation arguing their case — when what’s truly needed is less debate and more negotiation.
The goal of mediation isn’t to win the argument; it’s to find a resolution that both sides can live with. In fact, in most cases, the opposing party already knows the strengths and weaknesses of their own case, and no amount of argument is going to change that. The real skill in mediation is not in convincing the other side they are wrong, but in finding ways to meet their needs and interests while still advocating for your client.
In the hit Broadway show Hamilton, Aaron Burr advises Alexander Hamilton to "Talk less, smile more." This advice rings just as true for attorneys in mediation as it does for ambitious politicians. Let’s explore why focusing on negotiation, rather than argument, can lead to better outcomes for your clients. Below are my thoughts on the Hamilton Guide to Mediation.
Why Arguing Your Case Won't Change Minds
When both parties come to mediation with experienced legal representation, they typically have a solid understanding of the facts, the law, and the risks involved. They’ve likely evaluated their own case thoroughly and know where their strengths and weaknesses lie. Arguing your case extensively at mediation, then, often results in little more than wasted time. The opposing side is unlikely to suddenly change their view of their own case simply because you present your side passionately. Sure, it’s good for the mediator to learn the ins and outs of the case and both sides’ perspective, but I often feel that some attorneys are trying to convince me rather than educate me. I’m not the one that needs convincing. And they aren’t going to convince the other side.
Mediation isn’t a courtroom. The decision-makers — both the parties and their counsel — are there to find a resolution, not to determine who is "right." The more time spent on making a case to the mediator or the opposing side, the less time is spent on actual negotiation. Instead of trying to convince the other side that your case is stronger, it’s more productive to acknowledge the risks on both sides and explore ways to settle the matter.
Mediators Need to Understand Strengths and Weaknesses, but That’s Not the Whole Story
As a mediator, it’s important for me to understand how each party perceives their case — what they see as their strengths and where they recognize vulnerability. This helps me assess potential outcomes and facilitate productive discussions. But beyond that, my role is to help both sides move past the argument stage and into the negotiation phase.
Too often, lawyers use mediation as an extension of the litigation process, spending hours rehashing facts and legal arguments that have already been vetted and analyzed. What matters more in mediation is finding a way to address the underlying needs and interests of both parties. That’s where the true art of negotiation comes in.
The Difference Between Great Litigators and Great Negotiators
There’s a common misconception that being a great litigator automatically translates into being a great negotiator. In reality, the two skills are quite different. Great litigators build compelling arguments, cross-examine witnesses, and craft persuasive briefs. Great negotiators, on the other hand, focus on compromise, creative problem-solving, and finding ways to let the other side "win" while still protecting their own client’s interests.
In mediation, it’s not enough to know how to argue your case — you need to know how to negotiate effectively. Good negotiators understand that finding common ground doesn’t mean abandoning your position, but it does mean addressing the other side’s needs in a meaningful way. After all, the goal is to reach an agreement that both parties can accept, not to walk away with a moral victory.
Argue Less, Negotiate More: The Hamilton Guide to Mediation
In the Hamilton musical, Aaron Burr’s advice to "talk less, smile more" is about strategy. It’s about being deliberate and thoughtful, rather than reactionary and combative. The same holds true in mediation. Talking less doesn’t mean not advocating for your client — it means being strategic about when and how you speak, and focusing on the bigger picture of resolution rather than getting stuck in the minutiae of argument.
Don’t shoot yourself in the foot.
I know, perhaps I’m carrying the Aaron Burr/Alexander Hamilton theme too far. But you’re shooting yourself in the foot if you don’t come to a mediation prepared not just to argue your case, but to negotiate. That simply means being prepared to address your client’s needs while also helping the other side address theirs.
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