Five Reasons for a Litigator to Become a Mediator
By Eric Gillett
In my younger years, I played competitive youth soccer. I trained very hard in an effort to move up the competitive ladder. I built ball skills: passing, dribbling, shooting, scoring. I learned strategy for ball movement both offensively and defensively. I was good.
In time, I grew out of playing the game. I graduated law school, got married, had kids, and helped raise a family. Eventually, my kids began playing soccer. Like many parents, I began coaching. That’s a rite of passage and I highly recommend it.
I also found myself drawn to taking on a referee position. That is where I gained a new perspective. This was an entirely different aspect of the game. No longer was I searching for a win. I didn’t have an interest in who won. I was in pursuit of something else — not just rule enforcement, but fairness and judgment. This required me to learn new skills.
These skills included a thorough understanding of the rules of the game. But it also required me to improve my people skills. I needed to become skilled at resolving conflicts, communicating with both sides of the game on the pitch. To do that, I went to referee school. Having experience as a referee gave me a new perspective when I returned to the game as a player. The same is true for attorneys. Understanding how to conduct yourself as a mediator will give you an entirely different perspective as an advocate.
Alternative dispute resolution is a big part of any litigation practice. In most jurisdictions, it is required before presenting your case at trial. Litigators are discovering that training as mediators offers more than just a new credential; it transforms how they approach advocacy, negotiation, and client service. Whether you’re handling complex commercial disputes or routine civil claims, mediator training equips you with a powerful toolkit that enhances effectiveness both inside and outside the courtroom.
Below are five compelling reasons why mediator training is becoming a strategic asset for litigators.
1. Strategic Case Assessment: Seeing Beyond the Legal Arguments
Litigators are trained to build persuasive cases, marshal evidence, and argue legal principles. But mediation requires a different lens — one that focuses on interests, emotions, and relationships. Mediator training teaches litigators to:
A. Distinguish between positions (what parties say they want) and interests (why they want it).
B. Recognize non-legal drivers of conflict, such as fear, pride, anger, or miscommunication.
C. Assess the realistic outcomes of litigation versus negotiated settlement.
This broader perspective helps you advise clients more effectively. Instead of pushing toward trial in every case, you can identify when early resolution is in your client’s best interest — saving time, money, and stress. It also improves pre-trial strategy, as you learn to anticipate how opposing parties might respond to your offers or concessions.
2. Enhanced Communication and Negotiation Skills
At the heart of mediation is communication: listening deeply, speaking clearly, and building trust. Mediator training emphasizes:
A. Active listening: Understanding not just what is said, but what is meant.
B. Empathy and rapport-building: Creating space for parties to feel heard.
C. Reframing and reality testing: Helping parties see alternatives and consequences.
These skills are invaluable in litigation. Whether negotiating a settlement, deposing a witness, or presenting to a judge, you will be more persuasive if you communicate with clarity and empathy. These skills also help manage client expectations more effectively, reducing frustration and improving client satisfaction.
During a recent mediation, I worked with the plaintiffs and their attorneys to help them understand the strengths and weaknesses of their position as well as those of the defense. Even though the case did not settle on the day we mediated, the plaintiffs were extremely grateful for how I discussed the case with them. They felt heard and they felt understood.
Trained mediators are also adept at de-escalating conflict — a crucial skill when tensions run high in contentious cases. By modeling calm and constructive dialogue, litigators also can shift the tone of negotiations and foster cooperation. Sometimes clients want to focus on hot-button issues that have no easy solution at the expense of more basic issues that might have common ground.
In another mediation, one party was so angry at the other party’s conduct that led to the dispute that they were having difficulty seeing any realistic solution as reasonable. By de-
escalating the anger, we were able to get the client to think about solutions that worked.
3. Mindset Shift: From Combat to Collaboration
Litigation is inherently adversarial, but not every dispute needs to be a battle. Mediator training encourages a problem-solving mindset, where the goal is resolution rather than victory. This shift benefits you as a litigator in several ways:
A. It promotes flexibility in strategy, allowing for creative solutions.
B. It encourages client-centered advocacy, focusing on outcomes that serve the client’s broader goals.
C. It reduces burnout and cynicism, as we find satisfaction in helping parties move forward.
This mindset is especially valuable in long-term business relationships, family disputes, or employment cases, where preserving relationships matters. If you understand the dynamics of collaboration, you can help clients achieve durable, respectful resolutions.
4. Expanded Professional Toolkit
Mediator training introduces litigators to a range of tools used by mediators that enhance their practice:
A. BATNA/WATNA analysis: Understanding the best and worst alternatives to a negotiated agreement.
B. Interest-based negotiation: Focusing on mutual gains rather than positional bargaining.
C. Facilitative vs. evaluative techniques: Knowing when to guide parties gently and when to offer opinions.
These tools improve how you prepare for mediation sessions, draft settlement proposals, and interact with mediators. They also help you structure negotiations more effectively, using techniques like caucusing, agenda-setting, and option generation. Even outside formal mediation, these tools are useful in everyday practice — whether resolving discovery disputes, negotiating contracts, or managing internal firm conflicts.
5. Career Versatility and Leadership Opportunities
Mediator training opens doors beyond traditional litigation. If you train as a mediator, you can:
A. Serve as a neutral in private or court-annexed mediations.
B. Lead ADR initiatives in firms, bar associations, or community organizations.
C. Offer conflict coaching or facilitation services in corporate or nonprofit settings.
This versatility is especially appealing in a changing legal market, where clients value efficiency, creativity, and emotional intelligence. If you can mediate, you are seen as a trusted problem-solver, not just a legal warrior.
Moreover, mediator training enhances your leadership profile. It signals emotional intelligence, strategic thinking, and a commitment to resolution — all qualities that clients, colleagues, and courts respect.
When I was refereeing youth soccer, I never imagined how it might help me as a mediator. Listening to angry parents yelling at me from the sidelines didn’t seem like a learning inflection point. But it was. I needed to de-escalate. That normally meant ignoring the angry parent instead of showing them a red card. Today, it more often means helping someone understand their anger, offering a sympathetic ear, really listening, and helping them see that settling their case does not mean their anger is irrational or lacks merit; anger can have a place alongside a negotiated settlement.
In today’s legal landscape, where ADR is no longer optional and clients demand value-driven service, mediator training is a smart investment for litigators. It sharpens your strategic thinking, improves communication, and expands your professional horizons. More importantly, it aligns you with a broader shift in the legal profession — from adversarial posturing to collaborative problem-solving.
Whether you’re a seasoned trial lawyer or a rising associate, I encourage you to add mediation skills to your toolkit.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also 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 egillett@pregodonnell.com.
