Commentary

Lessons From Ted Lasso on Mediation Strategy

By Harold Oehler

Harold Oehler, co-author of the Florida Mediation Best Practices Handbook, is a full-time mediator with over 30 years of experience in employment, personal injury, product liability, insurance, and commercial litigation claims. He is former chair of the Mediation Section of the Hillsborough County Bar Association and serves on the Executive Council of the Florida Bar’s ADR Section. He is a former trial lawyer and general counsel of a national public company where he oversaw litigation nationwide. For more information, visit www.oehlermediation.com. ©2022 Harold Oehler. All rights reserved. Imagine walking into a mediation proceeding and discovering that your mediator is football coach Ted Lasso. At first you would be alarmed, but is there any doubt Ted Lasso would make an excellent mediator? Business consultants and coaches use this television program to teach teamwork and leadership. At its core, Ted Lasso is a show about resolving human conflict and it provides a master class in mediation strategy for trial lawyers and mediators.

It’s Not Just About Understanding the Law— It’s About Understanding People

A good mediator understands the law. A great mediator understands the people.

Ted doesn’t know his backside from an offside, but like a great mediator, he is adept at uncovering the needs of others and finding ways to make people with competing interests work together. Ted convinces Jamie Tartt, a self-absorbed prima donna concerned only with his own scoring, to pass to his teammates by showing him how that would ultimately lead him to greater personal success. By appealing to Tartt’s interests, rather than arguing with Tartt or threatening him, Ted was able to persuade Tartt to work more effectively with his teammates.

Mediation is a transactional event in the middle of an adversarial proceeding. The adversarial nature of litigation can sometimes cause litigators to default to “trial advocacy” during mediation and attempt to persuade the other side with argument and threats. Since there is no fact finder in mediation, using trial advocacy during mediation is counterproductive and usually only alienates the other side. Instead, it is far more effective to use “mediation advocacy,” which has been defined as “the technique of presenting and arguing a client’s position, needs and interests in a non-adversarial way to persuade the other party to enter into an agreement.”1 We should learn from our transactional colleagues who foster agreement between parties with competing agendas by understanding the other person’s interests2 and creating solutions that satisfy those needs. It’s never just about the money. Practicing transactional law and litigation for three decades before becoming a mediator taught me that mediation is more productive, and less expensive, when you approach the bargaining table as a transactional lawyer.

The most influential person at a mediation is usually not the toughest or loudest negotiator. Those types of negotiators are usually ignored and quickly relegated to spectator status. The most influential person at a given mediation may not be the mediator or even one of the attorneys. The most influential person at any mediation is almost always the person who best understands the underlying interests of both parties and is adept at creating settlement proposals that meet both sides’ needs outside the money.

Kindness and Empathy Create Trust

Virtually everyone felt hostile toward Ted when he was named as the coach, due to his lack of experience. Ted won everyone over, not by showing how much he knew (this would have been hopeless), but by using his superpowers of kindness and empathy. To deeply connect with his new boss, Ted brought her cookies each morning and referred to their conversations as “Biscuits with the Boss.” He took Trent Crimm, his harshest critic in the press, to dinner and gave him full access to practices. He took every opportunity to connect and find common ground with his adversaries, and he won their trust and respect.

Both the Harvard Negotiation Project and the FBI teach their negotiators the same primary negotiating skill: Empathy.3 Great mediators use their superpowers of empathy and emotional intelligence to uncover the unique needs of the parties and help guide the parties to mutually beneficial solutions. Whether you are a litigator or a mediator, taking an interest in a party’s needs creates immediate trust and rapport, even with your adversary. Focusing on areas of mutual interest rather than the points of disagreement is the fastest way to create agreement where those mutual interests meet.

Be a Goldfish

“You know what the happiest animal on earth is? It’s a goldfish. You know why? It’s got a 10-second memory.”4 -Ted Lasso

While litigation is an adversarial process, mediation is not. For instance, the Florida Rules for Certified and Court-Appointed Mediators defines mediation as “an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.” (Emphasis added).5 Each party must enter the mediation forgetful of the past transgressions that caused the dispute, and the lawyers must set aside prior disagreements that occurred during the litigation. All past baggage must be left outside the door of the mediation room.

If the litigation has been hard fought, it is especially important for counsel to demonstrate in their opening presentation that past transgressions have been forgotten and that counsel and their client are there to set aside argument for another day and work with the parties to reach a mutually beneficial agreement. This does not mean that the lawyers should not share the strengths of his or her case or the weaknesses in the other side’s position. It means that the lawyers should do so effectively with thoughtfulness and with respect. A good transactional lawyer is highly skilled at raising his or her client’s conflicting interests and disagreements diplomatically with the other side and working with all concerned parties to find a mutually beneficial solution that keeps the parties on track to reach an agreement. Trial lawyers and mediators should approach mediation not as a litigator or a judge but as a transactional lawyer who keeps the negotiation moving forward by focusing on mutual interests rather than points of contention or past transgressions.

Be Curious, Not Judgmental

Jason Sudeikis, the actor who plays Ted Lasso, describes the character as “ignorant and curious.”6 Sudeikis explains: “Curiosity comes from a power of being able to ask questions and truly empathize (with) what someone is dealing with.”7 Ted asks questions of everyone with a humble curiosity that shows that he cares and values the knowledge and experience of others. Similarly, one of the mediator’s most useful tools is curiosity. A mediator who asks questions to understand the case and the people involved gains respect both for taking an interest in the parties and for valuing the opinions of others. For example, when a party proposes making a counterproductive offer, a good mediator exercises curiosity, not judgment, and asks how the other side will likely respond to the offer. This usually leads to the enlightenment of either the mediator or the party making the proposal.

Treat Everyone as Important

Ted sees the best in people. He taps everyone for ideas, even the underappreciated equipment manager, Nathan, who shares game-changing ideas once he believes that Ted values his opinion. During the mediation, a skilled mediator will engage each person and encourage them to share their thoughts and solutions. This creates trust and makes the parties more willing to accept the mediator’s perspective.

“Believe”

Ted understands that hope is powerful, so he hangs a sign in the locker room with only one word: “Believe.” A mediator should display relentless optimism, from his or her opening statement through all the ups and downs of the mediation. The mediator should point out at the start of the mediation that cases often settle, even when the parties begin mediation with the belief that the case has no chance of settling. When the negotiations get tough, the mediator should continually remind the parties about their objectives and the progress they have made towards achieving them during the mediation. If the mediator sincerely believes in the process, the parties will believe too.

Humor Is a Powerful Tool

Humor often makes the truth easier to digest. Ted responds to every insult with humor and diffuses those who attack him. He influences people’s opinions by sharing funny, personal stories where the punchline carries an important lesson. Humor, especially at your own expense, disarms difficult parties, prevents confrontation, and maintains a productive atmosphere for settlement. It makes both the mediator and the litigator more relatable to the decision-makers, and by making them laugh, it puts them at ease and in a much more conducive position to reaching an agreement. Humor is the WD-40 of mediation and should be used liberally by litigators and mediators to establish rapport during mediation.

Ted Lasso teaches us that approaching mediation with curiosity, humor, and the problem-solving approach of a transactional lawyer, rather than with argument and threats, is the most efficient and effective path to success in mediation. 

Endnotes

1Susan Blake, Julie Browne & Stuart Sime, A Practical Approach to Alternative Dispute Resolution, § 16.87 (2d ed. 2012). 2Roger Fisher and William Ury, Getting to Yes, 42 (3d ed. 2011). 3Christopher Voss, Never Split the Difference, 49 (1st ed. 2016). 4Ted Lasso: Biscuits (Apple TV 2020). 5Fl. Supreme Ct., Florida Rules For Certified And CourtAppointed Mediators Rule 10.210 (Aug. 2021), https:// www.floridasupremecourt.org/content/download/216759/file/ rules-certified-court-appointed-mediators.pdf (emphasis added). 6Josh P. Armstrong, Ph.D., Ted Lasso: The Servant-Leader We Need Right Now, Medium (Nov. 24, 2020), https://drjosharmstrong. medium.com/ted-lasso-the-servant-leader-we-need-right-now8a88b843e7f1. 7Id.