Five Biggest Mistakes I See In Mediations

by | March 2024

Michael Ludwig outside smiling
I am fortunate in my mediation practice to work with some of the best attorneys around.

But no one’s perfect.

A few mistakes I see from time to time inspired me to bring these issues front and center and talk about how we can mediate more effectively.

In no particular order, here are five mistakes that can lead to a less effective mediation:

(1)   Not Adequately Preparing the Client

Some attorneys mediate regularly. Most parties don’t.

Your odds of a successful outcome at mediation are reduced if you fail to adequately prepare your client.

This includes educating them, when necessary, about the mediation process and the role of the mediator.

But you also want to talk to them about strengths and weaknesses of their case, realistic settlement value, and how you intend to approach the negotiation.

Without this information, a party may not be in the right frame of mind to compromise.

While most mediators will discuss all of these things with the parties at the mediation, a party ideally will hear them first from their attorney.

(2)   Holding Back Key Evidence

Sometimes you don’t want to show all your cards at mediation in case you don’t settle.

Maybe you want to spring a key fact or email or text message on a witness at a deposition for the first time.

Or perhaps you want to strategically hold back a key piece of evidence until the day of the mediation session to make a bigger impact.

The challenge these approaches present is that, before the other side will allow new evidence to influence their settlement position, they will want to see it, confirm its authenticity, and maybe even conduct additional investigation.

At minimum, the evidence that was held back will not have been factored into mediation preparation, including discussions about reasonable settlement value and/or authority.

It almost always works better to exchange evidence you want to use at mediation well before the mediation session so the other side has time to digest it.

(3)   Ignoring Facts or Evidence That Hurt Your Position

It usually is not helpful to take a position in mediation that accepts only your version of the story and ignores everything else.

Where, for example, your witness says that something was or was not said during a particular conversation, and a witness for the other side says the opposite, there is no factfinder at the mediation to decide who is telling the truth.

Thus, both sides are well advised to acknowledge the factual dispute and recognize that a factfinder might believe the other side.

This builds your credibility.

And it also helps your client appreciate that there are multiple possible outcomes, and to understand why their attorney is recommending compromise and ultimately settlement.

(4)   Taking an Adversarial Posture

Litigation is adversarial, and you may have a contentious relationship with your opposing counsel.

The parties may also be at odds with one another.

In mediation, however, the acrimony that sometimes creeps into litigation can be counterproductive.

Most mediators ground their mediation approach in respect, empathy, and trust.

While lively debate with the mediator about nuanced points of law or factual disputes can advance the mediation process, taking a belligerent or antagonistic tone in mediation rarely is productive.

Yes, your client wants to see you in the role of a zealous advocate. Mediators get that, and we are prepared for it.

But if you take a tone that conveys your own distrust of the mediator in front of your client, it can be harder as the process continues for the mediator to gain the trust of your client.

(5)   Not Tailoring the Brief to the Dispute

Here are three things to avoid when writing your mediation brief:

·    Don’t repackage a complaint or a summary judgment motion as a mediation brief. Both only tell one side of the story.

·    Don’t burden the brief with cut-and-pasted legal authority, especially if you use a mediator with subject-matter expertise who already knows the law.

·    Don’t omit important evidence and exhibits. You will miss an opportunity to educate and empower the mediator to help you get the case settled.

While every case/mediation is different, a universal best practice is to tailor your brief to the needs of a particular case.

Use the brief to introduce your client to the mediator, review material facts, talk about factual disputes, address strengths and weaknesses, discuss damages and/or potential exposure, and summarize any prior settlement negotiations.

Mediators use all of this information to prepare in advance for an effective mediation session.

To be sure, these five mistakes rarely are fatal to the mediation process. Skilled mediators can effectively navigate most twists and turns in a mediation. We do it every day. But in the spirit of continuous improvement, being mindful of these things can lead to a more efficient and effective mediation process every time.

Want to connect? Please find me on LinkedIn.

Hi I’m Mike Ludwig

I committed myself to honing my craft as a mediator and relentlessly learning everything I could about dispute resolution. I will endeavor to share thoughts and insights about some facet of mediation, negotiation, and dispute resolution, and other information that could be helpful or interesting to you.