Experienced litigators do not confuse trial advocacy with mediation advocacy. They are completely different types of advocacy as they have radically different purposes.
In a trial or arbitration, the attorney is attempting to convince the trier of fact of the righteousness of the client’s position(s). In mediation, advocacy is obviously designed to effectuate a resolution that is acceptable to the client. To achieve such a resolution, one wants and needs the cooperation of the opposing party, i.e., a client’s success at the mediation is dependent upon the opposing party accepting the resolution that is sought.
To secure the cooperation of the opposing party, it really makes very little sense to engage in hyperbole or an all-out attack on the morals, ethics, or interests of the opposing party. If a party places themselves in the shoes of the opposing party for just a moment, would you want to cooperate with an individual who has just delivered a scathing personal onslaught on your integrity, conduct, motives or values?
When planning and crafting the Opening Statement, seasoned litigators focus on the audience whose cooperation is required to achieve the client’s objective. Will the words that are uttered, and the manner in which they are delivered, further entrench the opposing party or will it give the opposing party a reason to reconsider its BATNA and positions and cooperate in reaching the ultimate goal? The former is ineffective mediation advocacy; the latter is effective mediation advocacy.
This is not to suggest that effective mediation advocacy cannot be forceful, persuasive, and compelling. Of course, mediation advocacy should be. No one expects or requests a party to be tentative, obsequious, servile or demure. However, effective mediation advocates tailor the content of the message and how it is delivered given the client’s strategic objectives.