07/05/2026
Ben Franklin was our country’s first great mediator as he helped broker America's independence and negotiate the treaty ending the Revolutionary War. Franklin's techniques for influencing passionate people with different interests to work together, provides a masterclass in mediation advocacy for every trial lawyer and mediator:
1. Do your homework so that you are fully prepared to discuss every aspect and respond to every question and comment. Franklin learned everything he could about the dispute before engaging. Before the mediation ever begins, an effective mediator thoroughly prepares until they are able to see the dispute from the eyes of both parties.
2. Negotiate in terms of each individual decision maker's unique needs and objectives. I believe that a good mediator knows the law, but a great mediator knows the people. Empathy is every great mediator and trial lawyer’s super power during mediation. You must become fluent with each party’s needs and objectives so that each person feels understood and so that you can offer creative solutions, beyond the money, that deliver what each decision maker really wants.
3. Pay attention to each person's words and body language. Be curious, not judgmental about both side's positions and ask questions that reveal paths to settlement. Pay attention to body language that reveals apprehension, anger, mistrust or hesitation and be prepared to address those feelings before they harden into obstacles to the negotiation.
4. Be persistent. Don’t expect to “win” the first time. Prepare the parties for the emotional roller coaster of mediation and how offers at 10:00 a.m. are very different from offers at 4:00 p.m. Like a pilot, stay positive through the turbulence and keep reminding the parties of the progress they have made. Your unwavering belief that the dispute will resolve is contagious.
5. Lead with your sense of humor. Humor is the WD-40 of mediation. Franklin won adversaries over with laughter. When a trial lawyer or mediator uses humor during mediation, this relieves stress and creates connection. Laughter releases endorphins, which improve a person’s mood and reduces stress. It also releases oxytocin, the “bonding hormone,” which makes the other person comfortable and more receptive to your message. Humor, and a strong connection to each decision maker, allow a mediator to create a positive emotional atmosphere for settlement even during highly contentious mediations.
In today’s world where listening and empathy are scarce, Benjamin Franklin’s techniques for resolving conflict are just as needed and effective as they were 250 years ago.
