Five Easy Ways to Fail at Mediation

By Leigh M. Wilco, Mediator & Arbitrator


I know that most lawyers and clients go into a mediation with the hope that the case will settle if the terms are acceptable. But in watching some lawyers mediate, there are lessons to be learned about how not to settle. Here are the top 5 ways to fail (in no particular order):


Don’t prepare for the mediation.

You’ve been lawyer for years, you have been dealing with this case for a while and, hey, you’re busy, this is not your only case. Besides, what is there to prepare? At mediation the parties exchange numbers and if they are workable you settle and if not, on to trial. Right?


Wrong. If you want to be successful you need to prepare for the mediation. That means know your case and spend some time with your opening to show the other side that you are taking this seriously. Know the facts and law. If you do not, you cannot properly advise your client. And the other side will know that you are not ready and conclude that you don’t want to invest the time and therefore do not want to try the case.


Don’t prepare your client.

You may have done a lot of mediations, but the chances are that your client has not. So if s/he has some unrealistic idea in mind about how the day is going to go, the way negotiations work, how long the mediation will last, or what the final settlement might be, the chances are the client will get frustrated and mad and feel a loss of control meaning that the chances of settling drop dramatically. Even with an experienced client, you should prepare him/her for the issues that will come up and help realistically evaluate the case.


Surprise the other side at the mediation.

Some people like to go into mediation without showing all of their cards to have an advantage if the case does not settle. That is fine, but you need to realize that if you decide during the mediation to give some new information or drop a bomb, the chances are that it will not be effective in settling the case. Usually, the other side needs some time to digest the information, maybe verify it, and then reanalyze their position based on this information. And if the other side is a corporate entity, the representative might need to get further authority that has to be approved and cannot be done on the fly. If this important information is in your favor and can change the value of the case, it is usually best to share it before the mediation.


Give a hostile, in-your-face opening that insults the other side.

I know, you want to show that you are tough and let them see what they are in for if they go to trial. And sometimes that can have an impact. But too often all it does is make the other side angry. When someone is angry, it is harder to be rational, reasonable and willing to compromise. So unless you have all the power and are not afraid of torpedoing the mediation, try to be tough but not incendiary.


Mediate too soon.

There are times when mediation before suit makes sense and can be effective. But often early in litigation there are too many unknowns for either one or both sides to properly evaluate the case. If each side believes that their case will only get stronger as discovery progresses, the mediation is doomed to fail. Both sides need to believe that the case is ready to be settled. That might be before suit is filed, it might be before expert depositions, it might be before summary judgment motions are decided. Each case is different, but both sides need to be on the same page as to the progress of the litigation.


These tips can help you make sure that the mediation is a failure. Of course, if you are interested in having it be a success, you might want to keep these in mind as what not to do.



Leigh Wilco

Leigh Wilco has been practicing law in Atlanta for over 35 years, representing plaintiffs and defendants in a variety of matters. For the past 20+ years, he has overseen the litigation practice group at Weissman PC (formerly Weissman, Nowack, Curry & Wilco) dealing with a wide range of real estate related matters, in addition to his previous areas of practice. Wilco has served as a neutral for more than 10 years in real estate disputes, premises liability claims, contractual disputes, small business and partnership dissolutions, professional liability, wrongful death, and personal injury cases. He has also been appointed by the courts as a Special Master and as a Receiver. Book your next mediation with Leigh HERE.