Some things change, while other things remain the same. Mediating cases over the past several years, I have witnessed that fear appears to be an unfortunate guiding light for many attorneys, young and old. It comes in many forms: fear of failure, fear that someone will take something from me, fear that I won’t get what I want, or worse, what I think I deserve.
When I hold fear as a lantern to guide my decisions, I am blocked from making decisions that are in my best interest or in the best interest of my client. For these reasons, I am restating the message from an article I wrote a few years ago. I want to remind those who mediate with me that honesty and vulnerability are virtues. And they are two things that are within our control in an otherwise uncontrollable world. Of all the articles I have written over the years, this one has received the most positive feedback from readers. I think it is because it touches on a couple of truths that others feel as well.
As a young attorney, I was taught that litigation was a form of intellectual warfare. It was a battleground where each strategy and decision was made with the aim of protecting the client — like a chess match, with every move calculated to safeguard the “king.” Before every hearing, a senior partner would often remind me, “Return with your shield, or on it.” This notion of litigation as conflict permeates the language of the profession, from terms like “complaint” and “answer” to “affirmative defenses.” Our role as litigators is to prosecute claims, defend clients, and engage in continuous argument.
Given this adversarial environment, it’s no surprise that, after months or even years of contentious legal battles, it can be difficult to find common ground and reach a resolution.
But over the years, I’ve questioned whether this combative approach is truly the best way to litigate. And when it comes to mediation, a process designed to foster resolution through collaboration with a neutral third party, does the “battle” mindset still hold? I believe it does not.
The Reality of Litigation and Mediation
I have encountered numerous mediation briefs in which one side refuses to acknowledge even the possibility of liability or damages. Phrases such as “the case is clear-cut” or “we have no exposure to liability but are here in good faith to resolve the matter” are common. These arguments suggest a reluctance to admit that the opposing party might have a valid case or that there may be room for negotiation. This is often rooted in the fear that acknowledging the other side’s position would make us vulnerable, opening us to further attack.
During a recent wrongful death mediation involving an estate, the opposing counsel refused to consider the case’s value in light of his client’s own potential comparative fault. Despite overwhelming evidence suggesting the decedent’s own actions contributed significantly to the incident, plaintiff’s counsel steadfastly maintained that the defendant bore full responsibility, rejecting any discussion of shared fault. Even after the mediation failed, the plaintiff’s counsel conceded that a jury was likely to find the decedent partially at fault, but he remained fixated on the defendant’s refusal to accept all responsibility. This inflexibility prevented a resolution, leaving the case unresolved.
The Role of Vulnerability in Mediation
So, why did this occur? Why would a party, clearly aware of the case’s weaknesses, refuse to engage in a more open discussion of liability? The answer lies in a fundamental reluctance to be vulnerable. Both plaintiff and defense counsel often find it difficult to acknowledge the inherent weaknesses in their cases, fearing that doing so will weaken their position or expose them to further disadvantage. But the truth is that vulnerability, far from being a liability, can be a powerful tool in mediation.
- Vulnerability is Your Sword
Admitting weaknesses, expressing empathy, and demonstrating a willingness to engage with the other side’s arguments can feel like a risk. It may seem as though conceding any point gives the opposing counsel an advantage. However, the opposite is often true. Vulnerability is a sign of confidence and credibility. Acknowledging that the other side may have a strong argument — or that your own case has weaknesses — demonstrates that you are capable of assessing the situation realistically. In contrast, holding onto an untenable position in the face of clear evidence to the contrary only signals an inability to engage in rational negotiation.
By acknowledging the challenges in your own case, you position yourself as someone willing to engage honestly. This makes you far more credible when you assert the strengths of your case. Your ability to recognize and openly discuss the areas where you are vulnerable allows you to negotiate from a place of strength.
- Honesty is Your Shield
Honesty is the most effective shield in mediation because it is indisputable. A commitment to transparent, scrupulous honesty in your assessments of the case, both its strengths and weaknesses, can significantly strengthen your position. A good mediator will take this honest evaluation and use it to facilitate discussions with the opposing party, enhancing your ability to advocate effectively.
When your honesty is evident, it becomes much harder for the other side to argue against you. They may not like your position, and they may not accept it immediately, but they will find it difficult to effectively counter an argument that is based on an honest assessment of the situation. Though honesty does not guarantee success in every case — because many variables influence the outcome of a settlement — it is a powerful tool that often leads to more favorable resolutions.
The Power of Vulnerability and Honesty
It is important to recognize that while the framework of litigation often emphasizes strength through conflict, the strategy in mediation is markedly different. Mediation seeks resolution, not victory. Those who enter the process with an open mind, a willingness to acknowledge their vulnerabilities, and a commitment to honesty are far more likely to succeed. By embracing vulnerability and honesty, attorneys can often negotiate better outcomes, achieving settlements that would have otherwise been unattainable through rigid, combative tactics.
The reality is that vulnerability and honesty are not weaknesses — they are strengths. Lawyers who incorporate these virtues into their approach to mediation will more often than not return with their shield, rather than on it.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. Further information is available at www.gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
