When in trial, it is often critically important for the jury to believe that the attorney is the “smartest person in the room,” an impression that the trial attorney may intentionally convey particularly when cross examining the opponent’s expert witness. However, in the mediation setting listening, observing and learning is far more important than demonstrating one is the smartest person in the room.
Unlike the court room, in the mediation context Albert Einstein’s observation is apt:
“If you’re the smartest person in the room you are probably in the wrong room.”
Experienced and sophisticated negotiators want to learn as much as possible during the mediation process and silence can be a very powerful tool. Not every statement made by the opposing party during the Opening Session requires a quick response. In that same vein, it is very difficult to ascertain the true interests and objectives of the opposing party if one is talking, focusing attention upon the formulation of the next utterance, sneaking a peek at the I-phone, or otherwise not listening very intently.
There is absolutely no substitute for the learning that will take place by listening carefully during the joint session and the caucuses. Also, it is often more important to listen for what is not said rather than focus exclusively on what is said.
If you do not focus and listen carefully for the various interests of the decision maker, you will be squandering a very valuable opportunity.