Mediation Pitfalls – Identify and Avoid
Andrew Winston, Esq.
Florida Supreme Court Certified Circuit Court Mediator
Florida Supreme Court Qualified Arbitrator
Mediation is now a central fixture in Florida’s civil litigation landscape. Yet, many attorneys continue to treat it as a procedural checkpoint rather than a meaningful opportunity for resolution. That approach can lead straight to some of the most common—and costly—pitfalls in the practice. If you’re preparing for mediation, it pays to know what to avoid and how to ensure productive results for your clients.
The first, and often biggest, mistake is approaching mediation with inadequate preparation. Too many lawyers walk into the session half-armed, knowing their own demands but having only a shaky command of the facts, supporting evidence, or even their client’s true objectives. Effective mediation starts well before the session itself. You should thoroughly review your case, organize documentation, and have candid conversations with your client about goals, risk tolerance, and acceptable outcomes. Preparation enables you to be strategic and flexible as the conversation unfolds—without it, you’re negotiating from a position of weakness or reaction.
Another pitfall is treating mediation as a courtroom battle. Mediation is not an adversarial contest; it’s a problem-solving process. Adopting an overly aggressive or inflexible posture often leads to entrenched positions and an impasse. Success in mediation demands both advocacy and a willingness to collaborate. Listen as much as you speak. Try to understand the interests driving all parties. When attorneys approach the process as an opportunity for creative, interest-based negotiation—not just posturing—they are far more likely to reach meaningful agreements.
Too many lawyers focus strictly on legal positions while neglecting emotional and practical factors that drive disputes. Mediation is about more than just law—clients’ emotions, underlying motivations, and practical needs frequently tip the scales one way or the other. Ignoring these factors or failing to acknowledge them can derail a promising negotiation. The best approach is to discuss with your client in advance not just what they want, but why they want it, and to recognize that sometimes resolution hinges more on being heard or validated than on the technical merits of a claim.
As the session winds down, there’s a danger in rushing through the documentation of the settlement. After hours of negotiation, everyone is tired and eager to leave—but settling too quickly can result in incompletely drafted or ambiguous agreements. In Florida, the written settlement agreement is paramount. Take the time to ensure the mediation settlement agreement (“MSA”) captures all material terms accurately, review the document carefully, and make sure every participant fully understands and agrees to the written terms. Leaving loose ends or unclear language creates uncertainty and sets the stage for post-mediation disputes.
Finally, never leave mediation without an executed, written MSA. Oral settlements agreed to in the heat of the moment are rarely enforceable and are an invitation for second thoughts or future litigation. Always ensure every term is reduced to writing and signed by all parties involved before anyone leaves the site—or, in the case of virtual mediation, before everyone logs off. (In Florida, signature of counsel is no longer required on the MSA).
Underlying all these pitfalls is a single principle: respect the mediation process. See mediation as a substantive chance for creative, lasting resolution, not as an obligatory step before trial. With preparation, collaboration, attention to detail, and clear documentation, lawyers can use mediation to achieve real and durable solutions for their clients.