Improving Mediation Skills

BC WLF UPDATE — by Rose Keith, QC

August 2020

Formal mediations are one of the primary tools in the Alternative Dispute Resolution toolbox. For lawyers, our intuition will not always lead us down a path that will be most effective at a mediation. Lawyers are skilled and focused on persuading others to see things the way we want. Those same skills can be counterproductive in a mediation. Mediation requires a mind shift, a shift from focusing on getting someone else to do what you want, to focusing on understanding the other party’s viewpoint, telegraphing that understanding and incorporating that viewpoint into your own presentation.

One reason to focus on understanding the other party is to identify potential biases that may be at play in their position. Some of the more common biases that you may encounter include confirmation bias, availability bias, halo effect, self-serving bias, attentional bias, actor-observer bias, anchoring bias, loss aversion bias, optimism bias and misinformation effect. Understanding the various cognitive biases that impact understanding of events, recognizing when those biases are driving views and dealing with those biases in a way that telegraphs understanding will improve your negotiation skill and translate to improved success in mediations.