The Mediator's Skill Isn't Just Legal — It's Also Emotional Intelligence

When the Lawsuit No Longer Matches the Facts

There's a pattern Brian Robison sees repeatedly in employment disputes: an employer feels betrayed by a departing employee, the lawyers comes out swinging (asserting every possible claim, demanding immediate discovery, and seeking injunctive relief), discovery does not pan out as well as expected, and six months later, the employer is looking at the legal bill wondering what that flurry of activity accomplished.

"The pattern I see in a lot of these departing-employee cases is immediate sound and fury," Robison says. "As soon as the employee leaves, everything's code red right away. Then six months later, the company is thinking: what did we just do? We spent a ton of money, but we have not uncovered much in the way of damages. It turns out he did not really steal trade secrets, customers, or employees after all. Now we are in a bind. We don't want to keep chasing a guy who didn't really hurt us — but we also don't want to set a bad precedent with the rest of the workforce."

It's a familiar enough story that the Dallas Bar Association's ADR Section has used it as a training case: a senior executive is bound by a noncompete, the former employer sues for a TRO the moment she takes a competing job, the court grants the TRO, and the parties engage in hurry-up discovery. After a few weeks, the parties often want to mediate before the hearing on the request for a temporary injunction. The specific facts change, but the procedural arc doesn't.

That gap — between how a case feels at filing and what it's actually worth two months later — is where Robison spends most of his time as a mediator. And closing it, he says, has less to do with legal analysis than with a skill no one puts on a CLE brochure: emotional intelligence.

The Prep Call: Testing the Case Before the Room Gets Hot

Robison's process starts before everyone is in the same room. "I always have a prep call with the lawyers for each side separately before the mediation," he says. "They send me their mediation statement, I read it, and then we get on the phone so I can walk through my questions. What's your proof of this? What do you think about that email chain? What's your answer to what the other side is saying about the hard drive or the customer list? Which customers did the employee steal? Did any other employees leave at the same time?"

That's where he starts pressure-testing the legal theory itself — not to score points, but to find out what will actually hold up. "I'll start giving impressions. I hear you on liability. I hear you on the breach. But what do you think are the chances the court says this noncompete is enforceable, considering it lasts for ten years and covers the entire state of Texas? Let's say you get past that enforceability issue, and let’s say you show the employee breached the noncompete by going to a competitor, what are your damages?"

The answer I often hear from the employer’s outside lawyer is a version of: "I hear what you're saying. I get it. The problem is my client just isn't there yet — so I'm going to need you to make this same point again at the mediation."

This isn't idiosyncratic to Robison. It's close to the textbook advice Dallas Bar mediators Gary Fowler and Tracy McCormack give attorneys preparing for employment mediation: use the pre-session call to assess "good facts and challenges" and "good law and challenges" before anyone sets foot in the room.

The Diplomatic Question That Changes Everything

By the time the client is in the room, Robison isn't telling anyone their case is weak — he's asking questions that let them arrive at that conclusion themselves. "Practically speaking, what was the harm?" he asks. "Did you lose business? Did you lose customers? Did you lose employees?"

The answers are frequently anticlimactic. Sometimes, a departed employee got married, moved out of state, and stopped working in the relevant industry. In other cases, the departed employee simply retired. There are also cases where an employee left for a company that barely competes with the plaintiff at all. Brian even had a case where one of the departed employees literally moved to Australia, which was several time zones away from the noncompete zone. Those facts do not show up in a demand letter, but all of them undercut a damages model — and Brian's job is to get the client to see that problem before a jury does it for them, after even more money is invested in the case.

"Even if you're completely right on breach," he explains, "the final judgment is not likely to be what you imagined, because at some point the question becomes: what actually happened, and what are you really entitled to?"

The technique has a name in mediation training, and it isn't a soft skill — it's a discipline. Fowler and McCormack teach it to Dallas attorneys as "the power of questions," calling it a mediator's "superpower," alongside the related principle of keeping the conversation on facts rather than personalities: data, not blame, keeps the spotlight on the issue that actually needs to move.

Why the Lawyers Don't Push Back

The riskiest part of this process, for any mediator, is that it can look like the mediator is undermining the client's own attorney. Robison is deliberate about avoiding that. In front of the client, he never frames a weak argument as the lawyer's mistake.

"I'll say: I know when you and your lawyers started this, everyone thought this guy had really hurt you — he'd taken people, files, customers. You did what most employers do; you got the TRO. Then you got into discovery. Sometimes discovery helps your case, and sometimes it doesn't. Here you are — the facts just haven't lined up the way you thought. That's not your fault. You're just facing reality."

Because the assessment is aimed at the situation and not the strategy, the attorney in the room rarely pushes back. And because the client hears it from a neutral rather than its own counsel, it lands differently than the exact same sentence would coming from the person the client is paying to fight for them. That distinction — outcome fairness versus process fairness — is exactly what Fowler and McCormack point to when they teach mediators to "balance the power structure:" people accept hard news better when they believe the process that delivered it was fair, regardless of who's speaking.

Breaking the Echo Chamber

A client and its own attorney are often an echo chamber — the lawyer's job is to advocate the client’s position, and the client is usually still running on the adrenaline of whatever happened to trigger the case in the first place. Within that dynamic, the employer is often not receptive to a reality check from its own lawyer.

In that situation, the mediator can sometimes deliver that reality check. Robison functions as a sounding board for both sides at once — not just lowering the temperature for an angry client, but pressure-testing each side's best arguments against what a judge or jury would likely do. Lawyers often leave the pre-mediation call with a preview of what Brian thinks of the case and a plan for talking to the client about options, because someone outside the fight was willing to ask questions the client couldn't hear from its lawyer directly.

Lowering the Temperature: A Skill, Not a Personality Trait

None of this is really about being liked. It's a specific, repeatable capability, and it has a name in the psychology literature: emotional intelligence. It is usually broken down into two personal competencies — self-awareness and self-management — and two social ones — reading other people accurately and managing the relationship once you have. The American Bar Association has been more blunt about the gap this closes in the profession than most CLE material dares to be: lawyers as a group tend to test high on raw intelligence and low on emotional intelligence. The same ABA guidance makes the more useful point for anyone hiring a neutral: emotional intelligence sharpens the ability to assess risk, recognize which ethical considerations apply to a situation, and cope with the fallout of hard advice — all things a mediator is doing constantly and a heated client is doing none of.

There's a neurological reason the "sound and fury" reaction happens in the first place, and it's the same reason it's containable. A sudden, intense emotion triggers an impulsive reaction that's regretted soon after — the pattern sometimes called "amygdala hijacking." Robison's prep calls and his practical questions are, functionally, an intervention in that cycle: they slow a client down long enough for the more deliberate, fact-based part of the brain to catch up with the reactive part that filed the lawsuit.

It's also worth noting this isn't a new idea to the legal profession, even if it's an underused one. The ABA's own Model Rules point the same direction: Rule 2.1's commentary tells lawyers that purely technical legal advice "can sometimes be inadequate" and that it is proper — not merely permitted — to factor in practical considerations like cost and the effect on other people. That's precisely the tool Robison uses with a client: not narrow law, but a full picture of what a decision actually costs.

What This Means for the Attorneys Reading This

For litigators and in-house counsel choosing a mediator, the practical takeaway is this: subject-matter expertise might get a mediator in the room, but it isn't always what gets a case to resolution. What gets it there is the ability to help two sides — often still operating on emotion rather than evidence — see the same set of facts clearly enough to make a rational decision. That's a distinct, learnable skill, and it's worth asking about directly the next time you're vetting a neutral.

From the Mediator's Chair

Brian E. Robison is a mediator and trial lawyer at Brown Fox PLLC in Dallas, Texas. With almost 30 years of experience in complex commercial litigation, employment disputes, and antitrust matters, he brings a mediator's read on both the law and the room to every engagement. Submit a contact form today for availability.