Why use a Mediator? Empathy and the Zealous Advocate

The preamble to the ABA Model Rules of professional conduct defines an advocate’s role:

“As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”

Notice what's missing: "understanding" the other side. "Empathy." Sure, you need to understand counterarguments—but that's intellectual work, not emotional labor. Nothing in an advocate's role requires cognitive empathy: the ability to understand another's perspective or mental state, to get where someone else is coming from.

I’ve met plenty of excellent advocates who lack empathy. They know their client has been wronged (even when their client is the defendant), and they find the most effective path to right that wrong in court. They empathize with their client. The other party, not so much.

Avoiding empathy for the opposing party may be self-preservation. The advocate sidesteps cognitive dissonance: they know their client has been wronged and advocate zealously. The opposing perspective is one to overcome, not one to understand.

Similarly, many successful litigators don’t communicate effectively with opposing parties or counsel. In their minds, their job: convince judges, inform clients. If opposing counsel or party happens to understand the argument, great. But that’s incidental, not the goal. They’re professional and courteous, but they’re not trying to communicate in a way that will be heard by the opposition.

The Empathy Push

Bar associations and similar groups increasingly urge more empathy in the practice of law. Judges, mediators, or other neutrals lament that one side “shows no empathy”. But these critiques often mistake professionalism with empathy.

Treating opposing counsel with respect is effective advocacy. But that’s different from an advocate empathizing with the opposing party. And lack of empathy for a party doesn't necessarily lead to hostility toward opposing counsel. There’s a difference between grabbing drinks with opposing counsel and understanding their client’s perspective. As an advocate, working relationships with opposing counsel matter more than understanding where their client is coming from.

If empathy comes naturally and you can manage cognitive dissonance, great. But if empathy isn’t your strength, spending time developing empathy towards opposing parties won’t necessarily make you a better advocate. It might just drive you crazy.

Why this Matters for Mediation

Recognizing your relationship with empathy, whether it’s absent or temporarily pushed aside for the sake of zealous advocacy, should inform your decision to hire a mediator.

Zealous advocates retain mediators to communicate with the other side. To translate zealous arguments into forms digestible to someone beyond clients or judges. Mediators aren’t judges, they aren’t “deciders.” They’re just third parties bridging communication gaps. And bridging those gaps means both sides feel seen and heard. Empathy may not be required for advocates, but it’s essential for mediators.

My argument: mediators need empathy. Advocates? Maybe not. Empathy can enrich your normal life, generally, but it’s not a prerequisite for an effective advocate.

The Evaluative Alternative

But plenty of mediators operate purely evaluatively. They deliver forceful opinions on who’s right, who’s wrong. Definite. Firm. Take your medicine – no sugar. I haven’t seen success with this approach, as defense counsel, in-house counsel, plaintiff’s counsel, or now as a mediator. It is certainly an approach, but it’s not one I’d recommend.

If there was a way to turn on comments that wouldn’t result in spam, I would. I’d welcome debate and would like to know:

·       Do clients or firms seek empathetic advocates?

·       Do advocates find empathy useful in practice?

·       Do parties prefer the evaluative, no-nonsense mediators?

Maybe LinkedIn will weigh in.

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.