Get the Most Out of Mediation by Avoiding These Five Common Mistakes

By Madeleine Mannello
Florida Supreme Court Certified Circuit Civil Mediator

Mediation can be a highly effective method for resolving disputes. Mediation not only gives the parties some degree of control over the outcome but also spares them from the significant financial and emotional costs of litigating a case through trial. Many parties and attorneys lose out on the opportunity to maximize the efficacy of mediation by making common, but avoidable, mistakes. Below are the top five most common mistakes attorneys make during mediation and tips on how you can avoid them.

1. Lack of Preparation
One of the most common mistakes lawyers make is attending mediation without adequate preparation. In addition to knowing your client’s desired outcome for the mediation, successful mediation requires that all parties have a thorough understanding of the facts and law applicable to their case, as well as the practical and financial consequences of any settlement agreement.
Preparation also includes considering how much time will be necessary for the mediation, identifying all parties that must be present, and educating your mediator about the case.

Tip:
While it is not necessary to prepare for mediation as you would for a trial, make sure that you have a solid grasp of the elements, evidence, and law relevant to your case before entering mediation. Make sure you also look for any weaknesses in your case to avoid being presented with any “surprise” information at mediation.
Remember that sufficient preparation for mediation includes sharing key insights about the case with the mediator prior to mediation. Drafting either a detailed memorandum or presentation to share with the mediator is a great way to not only educate the mediator, but also to prepare yourself.

2. Failing to Prepare the Client
The importance of preparing your client for mediation cannot be overstated. Preparation is especially key if the client is a private individual unfamiliar with the legal system. For these types of clients, mediation can be a disorienting and intimidating process. Too often, mediations fall apart because a client feels surprised or ambushed in mediation and loses trust in their attorney.

Tip:
Make sure your client understands the nature of the mediation process, including rules regarding confidentiality and its non-binding nature. Also ensure that your client is aware of the strengths and weaknesses of the case, items of evidence that may be presented, the financial and practical implications of a settlement, as well as the next steps in the legal process should the mediation impasse.

3. Overly Aggressive Communication
Many attorneys approach mediation with a combative, adversarial mindset, treating the mediation like a courtroom argument rather than a collaborative process. While this approach certainly has its place, it can often be counterproductive as it frequently escalates tension and causes the opposing party to “dig in their heels” on a position.

Tip:
If your goal at mediation is to get the case settled amicably, approach the mediation with a collaborative mindset and communicate in an assertive but non-offensive manner. Focus on attacking the problems in the other side’s case, not the person on the other side. If necessary, make the mediator the “heavy” and have them deliver bad news in private caucus.

4. Focusing Solely on Legal Issues
As lawyers, we sometimes become myopic, spending all of our time mastering the law surrounding our case while neglecting to consider the big picture. The truth is that practical and emotional issues often influence settlement decisions as much as (if not more than) the legal landscape of the case.

Tip:
Take a step back from your legal brief and identify the emotional, cultural, and practical aspects involved in your case. During mediation, acknowledge these concerns head-on in a respectful manner. When people feel their concerns are both acknowledged and respected they are more open to engaging in cooperative behavior.

5. Leaving the Mediation without a Written Agreement
It’s not over until the ink is dry! To be enforceable, mediation settlement agreements must be signed by all parties and their counsel.

Tip:
Parties may get “buyer’s remorse” after leaving the mediation, so do not leave the mediation without a mediation settlement agreement laying out the major terms of the agreement.
Mediation is an efficient and cost-effective alternative to mediation, make sure you maximize your, and your clients’ results by avoiding these common mistakes!