Here we go again: Responding to familiar frustrations in mediation

Mediation should help parties determine whether litigation is better than settlement. Too often, however, it becomes a ritualized and expensive exchange of inflated demands, defensive counteroffers, predictable caucuses, recycled mediator war stories and a slow march toward impasse. Counsel on both sides, along with claims professionals, may disagree about liability, damages, credibility and value, but they often share the same complaint: many mediations feel routine, inefficient, and ineffective.

Lawyers can improve their experience of mediation by doing four things differently: Prepare to negotiate before mediation begins, use opening moves more strategically, translate facts into meaning and treat mediators’ evaluations as data points rather than reliable predictions.

The first suggestion begins before anyone enters the conference room. Beyond simply mastering the facts, reviewing the law and calculating settlement ranges, prepare to negotiate. That means communicating earlier, exchanging information in advance and giving the other side something substantive to consider before positions harden. A written pre-mediation offer or position statement should not be a perfunctory advocacy piece. It should tell your client’s story with enough factual detail to make the other side reassess risk, value, and trial narratives.

This point applies equally to both sides. Defense lawyers should not wait until mediation to explain why liability is uncertain, why damages may not hold up, or why a jury may see the case differently. Plaintiff lawyers should not assume that a large demand, standing alone, will create value. Rather than ask, “What’s our opening number?” ask, “What do we want the other side to understand before we talk about numbers?”

In other words, think carefully about how you plan to achieve your outcome goal. Set the stage for a discussion that answers the central question: whether continued litigation is better than the terms on the table now. Have you tried to develop rapport with opposing counsel and the mediator? How well does the other side know your case? What questions do you have for the other side and for the mediator?

The second suggestion is to use opening moves more strategically. Traditional back-and-forth bargaining often rewards the very behavior lawyers claim to dislike. Extreme numbers beget extreme numbers. Each side then measures seriousness by the size of the next move. Reactions set in, frustration builds and movement grinds to a halt. Instead, work with your mediator to fashion a better process. The traditional distributive “dance” is merely convention. There are other ways to make money talk.

On the defense side, you or the claims professional can change the tone of the mediation by surprising the plaintiff: Make a serious opening offer without a demand. Engage the other side rather than enrage them. Use the resources on your side not merely to communicate a number, but to influence a meaningful response rather than reactive resistance.

Plaintiffs’ lawyers can do the same. Demands are not persuasive merely because they are high. But the scales tip when the demand is supported by evidence, favorable venue, damages, credibility and a story that will likely resonate with everyday people. Opening moves from either side that are disconnected from the case anchor nothing other than resistance.

The third suggestion is to remember that facts alone do not persuade. Lawyers are trained to organize and present facts, but decision-makers are moved by what the facts mean to them. Yes, whether a traffic light is red or green matters in terms of the law. But it also says something about responsibility, carelessness and choice. A missed diagnosis is not merely what falls within the standard of care. It’s also a story about competence, trust and accountability. A business dispute is not only a contract or fiduciary claim. It’s also about reliance, betrayal or commercial reasonableness.

Finally, how trustworthy is that “evaluative” opinion from some mediators? In the defense caucus room, they may warn, “You’ll never get summary judgment.” But based on the very same information, they may warn the other side, “Beware of summary judgment.” Why play that game?

You know your case better than anyone. Obviously, it’s much easier to evaluate a case once evidence has been admitted or excluded by the presiding judge. A mediator’s prediction of what “will” happen is not neutral because it’s offered in a negotiation context, usually with the goal of generating movement. Whether you believe the mediator’s “evaluation” is up to you. Instead of asking your mediator to predict which way the wind will blow weeks or months later, push for information in the moment that will help your team make a better decision. Why isn’t the other side moving? Is a joint meeting needed? If you offer X, what will the mediator recommend in the other room?

You don’t have to endure frustrating rituals or “check the box” mediations. Instead, create a structured opportunity to exchange information, influence decision-makers, and help your client make smarter, less reactive choices about what comes next.

Jeff Trueman, Esq., is an independent mediator and arbitrator and adjunct professor at the University of Maryland Francis King Carey School of Law. He can be reached at [email protected].