Top 10 Mistakes Lawyers Make in Mediation

Mediation can be a useful and cost-effective tool in resolving civil disputes. Many articles identify how to make best use of the mediation process, but few discuss the pitfalls that can lead to failure.

As a mediator, I’ve noticed common mediation errors that lawyers frequently make during the process. Here are the 10 most common mistakes I see lawyers make during mediation and how to avoid them.

Why Mediation Matters in Civil Disputes

Mediation is designed to resolve disputes efficiently and amicably. Unlike litigation, it encourages dialogue and collaboration, focusing on solutions rather than “winning” the argument. Understanding the purpose of mediation helps lawyers and clients approach it with the right mindset.

Common Lawyer Mediation Mistakes and How to Avoid Them

Treating Mediation Like a Trial

Mediation isn’t about “winning.” It’s about resolution. When lawyers are overly aggressive and take unreasonable positions, it can shut down dialogue and escalate tension. While mediation is about advocacy, it is primarily about listening to the other side. You know your own case, take the time to learn about the other sides’.

Not Preparing the Client

Clients need to understand that mediation is informal, confidential, and often unpredictable. Lawyers who skip this preparation risk letting client emotion or confusion derail the process. Far too often, clients are surprised by facts and/or arguments raised during the process. This can be avoided through thoughtful preparation. Tell them about the warts in their case. It’s better for them to learn from you.

Lacking Settlement Authority

All mediators ask counsel to come with settlement authority but what that means is subjective. Take the time to assess the case realistically and discuss the anticipated settlement range well in advance. If you know your client will not agree to settle the case within that range (or have sufficient funds to do so), reschedule the mediation until they do.

Overvaluing the Case

An inflated view of the case can lead to unrealistic expectations on your client’s part. If they have unrealistic expectations, the mediation is unlikely to succeed. Enter with a fair valuation, grounded in evidence, risk, and a sober assessment of the costs.

Submitting Weak or Generic Briefs

Mediation briefs should be concise, tailored, and strategic. Just as with court filings, use measured and persuasive language based on the evidence. Take your time drafting them because they are your opportunity to frame the dispute, identify the issues, and most importantly, equip the mediator to help. If you have persuaded the mediator of your cause before openings, you have already succeeded.

Ignoring Emotions

Behind every civil dispute are people, often with strong feelings. Lawyers who fail to acknowledge emotional dynamics can miss opportunities to build trust and move forward. At the same time, managing your client’s emotions as well as your own is critical to taking full advantage of the process.

Being Too Rigid

Refusing to compromise or insisting on “all or nothing” is unhelpful and unlikely to lead to a resolution. Principle is important but it can get in the way of achieving your client’s goal, which is to resolve the case. Flexibility invites creativity and often leads to better outcomes.

Talking Too Much

Mediation is a dialogue, not a lecture. Let your client speak if they want to. Listen carefully. Let the mediator work. Sometimes silence is your most powerful tool.

Underusing the Mediator

The mediator isn’t just a messenger. A trained monkey can carry a ball from one room to the other, but monkeys make poor mediators. Useful mediators are neutral problem-solvers. Let them reality-test, reframe, and manage difficult conversations. That’s what they’re there for.

Leaving Without a Clear Agreement

If a deal is reached, don’t leave anything vague. If you believe there is an understanding about an issue, write it down. Minutes of settlement should be specific, complete, and signed before anyone leaves. If you don’t have one, ask the mediator for draft Minutes of Settlement.

Explore Successful Mediation Strategies

Mediation is an art as much as a process. In my experience, lawyers who shift from adversarial tactics to solution-focused strategies consistently deliver better results for their clients. These mediation tips for lawyers can make all the difference in achieving a successful settlement.

Resolve Your Civil Dispute with Wallace Smith Mediations

To achieve an efficient and effective resolution to your civil dispute, whether you are a lawyer or an insurance professional, consider leveraging the expertise of Wallace Smith Mediations. Start the process today and secure a mediation date that works for your schedule by visiting Wallace Smith Mediation Services.