Mediation is intended to resolve disputes, not to check a procedural box or make a perfunctory settlement attempt. Too often, avoidable missteps derail that objective. The following are common mediation mistakes that make resolution harder to achieve.
1. Treating Mediation like Litigation — Trying to “Win” the Day
Mediation is not a trial. Approaching the session to score points, argue the record, or “beat” the other side often hardens positions and narrows options. The more productive mindset is problem‑solving: broaden the zone of potential agreement by identifying interests, constraints, and creative trades that a court cannot order. Counsel who signal respect while maintaining rigor build trust that unlocks movement.
2. Negotiating Numbers Without Negotiating the Problem
Parties frequently jump straight to dollar demands and concessions without first agreeing on what is actually being priced. Liability contours, timing, risk allocation, scope of releases, non‑monetary terms, and enforcement mechanisms all influence value. Establishing a shared framework early — what issues are being settled and on what assumptions — prevents false impasses and reduces late‑stage retrades.
3. Keeping Decision‑Makers Out of the Room
When people with true authority are absent, momentum stalls. Proposals become “subject to approval,” quickly sapping urgency and flexibility. Ensuring that final decision‑makers are present (or unambiguously available in real time) is one of the simplest ways to improve outcomes. The same applies to insurers and boards — alignment beforehand, attendance where feasible, and clear settlement parameters pay dividends.
4. Ignoring Timing and Preparation
Mediations fail as often from poor timing as from poor offers. Coming too early — before key facts are exchanged or insurance positions are vetted — can make the session performative. Coming too late — after fees and emotions have entrenched — can shrink the zone of agreement. Preparation matters as much as timing: focused mediation statements, realistic risk analysis, updated damages models, and pre‑session calls with the mediator lay the groundwork for progress.
5. Withholding Information That Would Change the Other Side’s Risk Calculus
Some parties sit on critical documents, expert analyses, or business realities hoping to preserve leverage. In mediation, strategic disclosure — curated, credible, and well‑timed — often creates leverage. If a piece of information would materially affect the other side’s valuation, sharing it through the mediator with appropriate safeguards can move the needle more than another round of bracketed numbers.
6. Overweighting Anchors and Underweighting Structure
Opening offers matter, but they are only one part of the negotiation architecture. Parties who fixate on first numbers miss opportunities in brackets, contingent concessions, issue sequencing, mediator’s proposals, and conditional packages that reallocate risk in ways both sides can accept. Paying attention to structure — which moves unlock which responses — accelerates agreement.
7. Using the Mediator as a Courier Rather Than a Counselor
A mediator is more than a messenger. Limiting the neutral to relaying offers forfeits value. Inviting the mediator to test assumptions, reality‑check litigation risks, refine valuation models, and stress‑test settlement structures introduces objectivity that parties often cannot access on their own. Productive caucuses are candid, specific, and iterative.
8. Letting Emotion Go Unmanaged
Disputes are human. Anger, fear, and perceived disrespect can eclipse rational analysis. Acknowledging emotions without letting them drive decisions is essential. Counsel can help by setting expectations, discouraging performative grandstanding, and allowing space for the mediator to address dignity, apology, and acknowledgment — often the cheapest, highest‑return “currency” in the room.
9. Failing to Design for Implementation
Deals fall apart in the “last mile” when payment timing, tax treatment, lien resolution, confidentiality, non‑disparagement, indemnities, cooperation, dismissal mechanics, or enforcement are left vague. Bringing a short, case‑specific term sheet checklist to the session keeps momentum from evaporating and prevents avoidable post‑mediation disputes.
Practical Takeaways for Success
Most failed mediations do not fail for lack of a number; they fail for lack of a framework. Invest early in clarity, credibility, and implementation, and you will expand the range of acceptable outcomes and shorten the path to resolution. Here are some practical takeaways.
First, clarify your goals. Before mediation, identify your underlying interests and long-term objectives, not just your legal positions. As yourself what a successful resolution looks like beyond simply “winning”.
Second, prepare to engage the other side. Approach mediation as a collaborative problem-solving process. Focus on communicating with the opposing party rather than trying to persuade the mediator.
Third, prioritize substance over speed. Resist the urge to settle quickly for the sake of closure. Take the time to explore creative solutions. A durable, thoughtful resolution is more valuable than a rushed compromise.
Fourth, practice active listening. Acknowledge the other sides concerns and use your mediator to ask clarifying questions. Use the mediator as a resource to reality-test your assumptions and facilitate communications. Be open to the mediator’s feedback and suggestions and avoid treating them as a judge to be convinced.
Finally, focus on long-term outcomes. Aim for solutions that provide lasting value rather than short-term wins.
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