Ten Common Mistakes Lawyers Make in Mediation
As a mediator, I regularly observe patterns that can undermine otherwise productive mediation sessions. While every dispute is different, certain missteps appear time and again. Below are ten common mistakes lawyers make during mediation, along with practical guidance on how to avoid them.
Why Mediation Matters in Civil Disputes
Mediation is intended to help parties resolve disputes efficiently and constructively. Unlike litigation, the process emphasizes communication, cooperation, and problem-solving rather than courtroom advocacy. When lawyers and clients understand the purpose of mediation, they are more likely to approach it with realistic expectations and a willingness to engage.
Common Mediation Mistakes and How to Avoid Them
Treating Mediation Like a Trial
Mediation is not about winning arguments. When counsel adopts an overly aggressive posture or takes inflexible positions, meaningful dialogue can quickly shut down. Advocacy remains important, but mediation also requires careful listening and curiosity about the other side’s perspective. You already know your own case; mediation is an opportunity to better understand theirs.
Failing to Prepare the Client
Clients should be prepared for the informal, confidential, and sometimes unpredictable nature of mediation. Without preparation, emotions or confusion may derail progress. Clients are often caught off guard by arguments or facts raised by the other side. These surprises can be reduced through thoughtful advance discussions, including an honest review of weaknesses in the case.
Arriving Without Meaningful Settlement Authority
Mediators routinely ask counsel to attend with settlement authority, but the scope of that authority can vary. Lawyers should realistically assess the case and discuss potential settlement ranges with their clients well before the mediation date. If a client is not prepared to settle within a reasonable range, it may be more productive to postpone the session.
Overvaluing the Case
An inflated assessment of the claim or defence can create unrealistic expectations and stall negotiations. Mediation works best when valuation is grounded in evidence, legal risk, and the financial and emotional costs of continuing the dispute.
Submitting Generic or Unfocused Briefs
Mediation briefs should be concise, tailored, and purposeful. This is your opportunity to frame the dispute, highlight key issues, and assist the mediator in understanding what matters most. Clear, measured language supported by evidence can set the tone for a productive session.
Overlooking Emotional Dynamics
Most civil disputes involve people with strong emotions. Ignoring these dynamics can mean missing opportunities to build trust and move discussions forward. At the same time, managing your client’s emotions—and your own—is essential to making effective use of the mediation process.
Being Too Rigid
An “all or nothing” approach often limits the possibility of resolution. While principles matter, flexibility can open the door to creative solutions that align with your client’s underlying goals, including cost control and finality.
Dominating the Conversation
Mediation is a dialogue, not a lecture. Allow space for your client to speak if they wish, listen carefully to the other side, and give the mediator room to do their work. Strategic pauses and attentive listening can be as impactful as persuasive argument.
Not Making Full Use of the Mediator
A mediator’s role extends beyond conveying offers. Mediators help parties test assumptions, reframe issues, and navigate difficult conversations. Engaging the mediator as a neutral facilitator can add significant value to the process.
Leaving Without a Clear, Written Agreement
When a resolution is reached, clarity is essential. Any agreed-upon terms should be written down, reviewed carefully, and signed before the session concludes. If there is uncertainty about how to document the agreement, ask the mediator to assist with drafting Minutes of Settlement.
Thoughtful Approaches to Mediation
Mediation is both a structured process and a skill that develops with experience. Lawyers who move away from purely adversarial tactics and focus on practical, solution-oriented strategies are often better positioned to help clients resolve disputes efficiently.
Working With Wallace Smith Mediations
For lawyers and insurance professionals seeking a practical and focused approach to civil dispute resolution, Wallace Smith Mediations offers mediation services designed to support constructive dialogue and timely outcomes. To learn more or to schedule a mediation, visit Wallace Smith Mediation Services.
