It’s hard to keep an open mind. We ask jurors to do it. We ask the parties in mediation to do it. But how does it work? 

When lawyers want to win, we think “what would the other side say to defeat my argument?” If we can articulate our opponents’ best case, we are ready to go up against them. That’s why law schools use moot court as a skill building practice. In moot court classes and competitions, law students have to represent both sides of the same case. One day they are the plaintiff’s attorneys. The next day they are counsel for the defendant, arguing against the very same claim that they advocated so vigorously. In England, a barrister can represent the prosecutor (the Crown) in criminal court, yet defend an accused person in the same court. 

Lawyers are trained to see both sides. They can argue both sides because there are two sides. Why would there be a trial if there were only one side? But in mediation, it can be difficult for clients to back away from one point of view. Lawyers can help by carefully explaining claims and defenses, respecting their worth. It doesn’t promote settlement to say that your adversary is making a ridiculous point. An accurate assessment, patiently laid out, leads to good decisions.