Mediators prefer to be facilitative rather than evaluative. This is because no one can know a case as well as the party presenting it, and a mediator who presumes to do so risks making a serious error of judgement. Also, the mediator does not know everything a party knows and sometimes a party does not or cannot disclose information that would otherwise change the mediator’s personal evaluation.
On the other hand, the mediator can provide a ‘reality check’ on the parties’ factual or legal positions and can sometimes see weaknesses or strengths that a party may have overlooked. Accordingly, the wise advocate learns not only how to try to persuade the other side in mediation but also how to listen and learn from the mediator.
One skill that differentiates the ordinary from the excellent advocate is the ability to listen and learn from the mediator’s communications. It pays to listen carefully to the mediator who is, in reality, facilitating a discussion with the opposite side. Sometimes, what is said or the way something is said can reveal an opportunity for a way forward in the negotiations. Listening is as important as speaking.
