My grandfather used to tell me “you have two ears and one mouth for a reason” whenever he thought I was getting “too big for my britches.” His point is a good one and assists us with being a better mediation advocate. Mediation is a time for listening to the other side. If we listen, they will tell us how they intend to present their case at trial. They will tell us where they believe we are weak (and thereby allow us to better defend that position if the matter doesn’t settle).
Too often, attorneys are so focused on convincing the mediator that other side is wrong that I am barely able to introduce a concept, much less explain it, before they aggressively jump in to explain why the opposing position has no merit. They can be so strident in their response that they will not listen to the explanation. Consequently, their client may erroneously think there is no risk in the opposing point of view. As mediator, I then have to delicately navigate how to expose the client to risk without seeming to argue with counsel in front of their client. Or, if counsel is only capable of naked aggression and not contemplative reaction, I may have no luck getting them to listen at all.
The better approach is one that allows counsel to both acknowledge the opposing argument while simultaneously asserting their competence and issue mastery. The approach suggests whenever counsel is faced with an opposing position at mediation, they should:
- Listen for the purpose of understanding and assessing real risk to the client;
- Acknowledge that if the opposing view is persuasive to a jury, the client will face risks at trial (this step can help avoid a frustrated client and possibly a malpractice suit if the opposing view wins the day at trial and counsel has forcefully argued it has no merit and their client should not consider it);
- Explain how you believe you can overcome the opposing position, citing facts and law if available; and
- Explain to the client that you believe you can overcome the perceived weakness, but that it is a real risk that the client should consider and if the jury believes that position, the client’s chances of success at trial diminish.
Hon. Jay Young (Ret.) is a retired judicial officer with decades of experience presiding over complex civil litigation matters. Following a distinguished career on the bench, Judge Young now serves as a mediator, arbitrator, and court‑appointed special master, and discovery referee. Judge Young brings a disciplined, impartial, and results‑oriented approach to dispute resolution. Judge Young is based in Nevada and accepts appointments statewide and nationally, subject to agreement or court order. He can be reached at 855.777.4557 or info@armadr.com
Known for judicial temperament, analytical rigor, and practical problem‑solving, Judge Young assists litigants and counsel in resolving high‑stakes disputes efficiently and with integrity and employing best practices. He is recognized by U.S. News and World Report’s publication Best Lawyers as Arbitration Lawyer of the Year.