Originally from Dispute Resolution Journal

Asking a seasoned litigator to mediate is like asking a warrior to work in a hospital. While a litigator can make the transition to  arbitration where zealous advocacy and victory are common requirements, those experienced in adversarial combat often feel uneasy about the conciliatory mediation process. Parties who go to an attorney, assuming that they will find a gladiator to act on their behalf, may not be comfortable with the idea of the attorney as counselor and advisor in a creative rather than a vindictive process.

Mediation requires a different mindset for the attorney/participant. This article, an overview of the differences between the adversarial and conciliatory processes, will examine and contrast the philosophy, process and result of each. Then it will examine the four common phases of the mediation process and the productive attitudes and approaches which are required in each stage. The attorney’s tools in mediation are markedly different than those required in the litigation or arbitration processes.