Top 5 Mistakes Lawyers Make in Mediation (and How to Avoid Them)

Mediation can be a transformative process, turning heated disputes into cooperative solutions, but it doesn’t always run smoothly. Over the years, I’ve had the privilege of mediating many cases and observing how legal representatives engage with the process. While lawyers are invaluable in advocating for their clients, mediation requires a different skillset from litigation. Below, I’ll outline five common mistakes lawyers make in mediation and offer some practical advice on how to avoid them. This isn’t to point fingers—everyone is always learning—but rather to provide insights that can enhance the mediation experience for both lawyers and their clients.

1. Treating Mediation Like Litigation

Mediation is not a courtroom, but sometimes it can feel like one if lawyers approach it with the same mindset they use in trial. In litigation, the goal is to "win" by persuading a judge , but in mediation, the aim is to find a solution that works for both sides. When lawyers focus solely on legal arguments, they miss opportunities for creative problem-solving.

How to Avoid It: Encourage your clients to approach mediation with flexibility. While the law is essential, mediation is also about interests, relationships, and future possibilities. Reframe your role from advocate to problem-solver, working with the mediator to explore options that might not be available in a court ruling.

2. Overlooking the Importance of Listening

In the rush to make their case, some lawyers fail to listen—truly listen—to the other side. This is perhaps one of the most significant missed opportunities in mediation. Often, what clients want more than anything is to feel heard. When lawyers talk over or dismiss the concerns of the other party, it can deepen conflict instead of resolving it.

How to Avoid It: Take a step back and encourage active listening. When the other party feels understood, they are often more willing to engage in meaningful dialogue. In my experience, many disputes are resolved not by arguing a stronger case, but by showing empathy and understanding.

3. Being Too Rigid in Negotiations

Another common mistake is walking into mediation with a predetermined “bottom line” and refusing to budge. While it’s essential to know your client’s goals, an inflexible stance can derail negotiations before they even begin. Mediation works best when both sides are willing to explore options they hadn’t initially considered.

How to Avoid It: Before the mediation, prepare your client for the possibility of compromise. Encourage them to think about their priorities, but also about where they might be able to give ground. This flexibility often leads to solutions that both sides can live with, rather than the win-lose dynamic of litigation.

4. Undervaluing the Role of Emotions

Mediation isn’t just about legal issues—it’s about people, and people come with emotions. Lawyers who focus only on the legal aspects of the dispute may underestimate the emotional undercurrents that can significantly impact negotiations. Whether it’s frustration, anger, or fear, unaddressed emotions can stall or even sabotage the mediation process.

How to Avoid It: Acknowledge and address emotions as part of the process. As much as we may want to remain objective and detached, emotions often hold the key to understanding the true issues at play. By giving space for these feelings to be expressed, either by the client or the other party, you create a more constructive environment for resolution.

5. Not Preparing the Client for the Realities of Mediation

Finally, one of the most common missteps is not preparing clients adequately for mediation. Some clients come in expecting it to be a quick fix or believing it’s a sign of weakness to settle. Others may have unrealistic expectations about what can be achieved. When these expectations aren’t managed, clients can become frustrated or disappointed with the process.

How to Avoid It: Set clear expectations from the outset. Explain that mediation is a process of negotiation, not an immediate solution, and that compromise is often necessary. Help them understand that settlement is not about giving up but finding a way forward that minimizes risk and stress while preserving relationships and resources.

In conclusion, mediation is a powerful tool for resolving disputes, but it requires a shift in mindset. By avoiding these common pitfalls, lawyers can better support their clients and help facilitate more successful outcomes. From my experience, the most effective advocates in mediation are those who remain flexible, listen actively, and understand the emotional and relational dynamics at play. Mediation isn’t about winning; it’s about resolving—and that requires a different kind of expertise.