by Andrew Flake
Every year in Atlanta on the Fourth of July, runners, walkers, spectators and friends show up for the Peachtree Road Race. The race is a 10K run that winds through the city’s Midtown district and ends up in Piedmont Park, with lots of cheering, music, and fanfare along the way. his morning, my 16-year old son and I were among them, arriving around 7 a.m. for our start.
Almost right away, of course, he surged ahead, weaving and vanishing into the moving crowd of red, white and blue. I briefly considered running to catch up and then reconsidered. With a little over six miles to go, and the expected Georgia heat, pacing would be awfully important.
And that got me thinking about the mindset shift that makes for successful mediation.
Both a sprint and a 10K, just like a mile’s jog and a marathon, are running. The basic mechanics are the same, but the preparation, the timing and the pace are all different.

Isn’t that also true of contested proceedings, whether in the courtroom or in arbitration hearing, and the mediation room? Yes, they are all forms of dispute resolution, and in all of them, analysis, critical thinking, and judgment play a role in ending a conflict.
But mediation calls for a different mindset and toolset, a switch from unmitigated and full-bore advocacy. The most effective negotiators I see in mediation, among them very skillful and hard-charging trial lawyers, understand this: They know their primary task is not to convince a judge, or a jury, or even the mediator that their position will prevail; it is to convince the people in the other room that a deal makes sense.
They seek to really listen to what is driving the other side, to gauge what emotions or business concerns are present, and seek where possible to accommodate them through creative options and tradeoffs. In that task, they work with the mediator, relying on them for understanding, ideas, and input on their approach.
The race parallel hold true as well when it comes to timing. There is ground to cover between start and finish, a course and a route. That may, and ideally does, start even before the in-person mediation session, but whether compressed or not, the steps are important for both counsel and the mediator. Building rapport, understanding the issues, crystallizing key facts, evaluating both their own and the other side’s claims. When counsel and their clients have the opportunity, and take the time, to go through this process, it invariably gets them to a superior settlement.
Happily, I can report this morning’s race process complete, and the holiday weekend lies ahead. Wishing you a restful and reflective Fourth of July! ABF