Five Mistakes Attorneys Make at Mediation — and How to Avoid Them

Mon, Mar 2nd, 2026 | by Miles Mediation and Arbitration | Article | Social Share

By Marci Joel

Mediation offers the unique opportunity to have open discussions, control risk, manage cost, and resolve litigation on predictable and agreed upon terms. Yet, even seasoned attorneys frequently fall into avoidable traps that reduce the effectiveness of the process and the mediator. After over 20 years working as a mediator, here are 5 common mistakes I see attorneys make — and how to avoid them.

Mistake #1: Failing to Prepare for Mediation

Preparation is key for a successful mediation. Know the facts. Know the documents. Know the parties involved. Know the weaknesses in your case. A lack of preparation is often the root cause of an unsuccessful mediation.

Lawyers should also understand the difference between “miscommunications” and “missed communications.” A miscommunication occurs when one party hears or understands something one way, while the other intends something entirely different. These breakdowns can frequently be resolved during mediation.

A missed communication, however, is a different matter altogether. A missed communication involves information that should have been shared — well before mediation — but wasn’t. Sometimes the omission is intentional, such as withholding a critical fact in the hope that the other side won’t discover it.

Other times, it’s unintentional. This can occur where parties believe they have produced all relevant documents or fully disclosed their damages, only to discover that something important was overlooked. While missed communications can sometimes be resolved at mediation, premeditation preparation will often uncover these issues and allow for them to be resolved so that all parties come to mediation with the same information and having had the opportunity to properly evaluate the case effectively.

Failing to thoroughly review the case, key evidence, and opposing arguments often results in a need to be reactive rather than strategic. Mediation shouldn’t be used as a crash course to learn about your case or refresh your recollection on the facts or documents. If you aren’t fully prepared, you’ll be unable to respond effectively to questions posed by the mediator or to arguments raised by the other side.

Equally problematic is failing to obtain and analyze all necessary documents. Make sure you have all relevant documents from both your side and the opposing side prior to mediation. Missing records, business agreements, medical documentation, financial disclosures, or expert reports, can significantly impair valuation discussions and stall negotiations unnecessarily.

Know your strategy. Entering mediation without a clear negotiation strategy almost guarantees inefficiency. Prior to mediation, define objectives, acceptable settlement ranges, anticipated pressure points, and a plan for concessions. Have a road map ready of where you want to go but be prepared for detours along the way.

Mistake #2: Being Overly Aggressive or Dismissive

While advocacy has a place in mediation, unchecked aggression often works against resolution. There is a difference between presenting a strong case to the mediator and approaching mediation with a hostile or overly combative attitude.

If you are set on being the loudest voice in the room, you may win the argument and lose the outcome. Aggression escalates emotions, entrench positions, and reduces willingness to compromise. You are more likely to persuade people with respectful discussion rather than aggressive bravado.

Likewise, dismissing the opposition’s case outright frequently also backfires. Even weak cases usually carry some risk. A party who feels disrespected is far less inclined to negotiate or come to a reasonable resolution.

In addition, an unintended consequence of aggressive or dismissive positioning can result in alienating the mediator. Mediators are more effective when they trust both sides and believe counsel is negotiating sincerely. When counsel adopts an overly aggressive, dismissive, or inflexible tone, the mediator’s ability to advocate persuasively on their behalf diminishes.

Along the same lines, threatening to end mediation early is also rarely productive. Premature ultimatums often cut off progress just as momentum is building. Often patience and measured firmness yield better results.

Mistake #3: Failing to Assess Settlement Value

Inaccurate valuation is one of the most damaging mistakes in mediation. Underestimating or overestimating the case’s worth skews negotiations from the outset. Overconfidence in defenses or dismissal of damages theories can lead to missed settlement opportunities, while overvaluation can result in unnecessary concessions.

Counsel isn’t the only one who needs a fair assessment of the case going into mediation. Failing to properly manage client expectations compounds this problem. When clients arrive at mediation with unrealistic assumptions about outcomes, negotiations become more difficult. This is especially true if the unrealistic expectations stem directly from counsel. Prepare your client well in advance by explaining risks, uncertainties, and likely realistic settlement ranges ahead of mediation.

Try not to get “stuck” due to an unreasonable initial demand or offer from the other side. Fixating on an unreasonable number is a pitfall of its own and can cause you to lose sight of the broader goal—moving the case toward resolution through incremental, strategic movement.

A lack of a concession strategy further hampers negotiations. Settlement is rarely linear, and the opposing party typically needs to feel they achieved a meaningful win. Remember to have a strategy. Counsel who plan concessions deliberately, rather than grudgingly, maintain greater control over the process.

Finally, taking an unrealistic settlement position driven by emotion rather than facts undermines credibility. Effective valuation considers litigation costs, jury unpredictability, venue risk, appellate exposure, reputational concerns, and non-monetary terms, not just theoretical trial outcomes.

Mistake #4: Failing to Have Authority to Settle/Using Hardball Tactics

Arriving at mediation without true authority to resolve the case is a major impediment to success. It is not uncommon for clients to withhold settlement authority numbers from counsel prior to mediation. However, the final decision-makers must be present or at least available.

Failure to have actual authority or access to the final decision-maker during mediation negotiations will often result in stalling the process at critical moments.

Even with actual authority, many attorneys or clients like to try hardball tactics, taking positions they know are unlikely to succeed at trial. This can damage credibility, and once lost, credibility is difficult to regain. Parties who negotiate transparently within realistic parameters are far more effective than those who posture aggressively without meaningful authority or conviction.

Mistake # 5: Failing to Use the Mediator to Help Settle Your Case

One of the most underutilized assets in mediation is the mediator. Failing to use the mediator as a problem-solver, rather than merely a messenger, limits the process. Experienced mediators bring perspective, creativity, and insight that counsel and parties cannot obtain on their own.

The mediator is hearing the case for the first time, much like a juror or trial judge. Ask for honest feedback and be prepared to listen to questions the mediator may have about your case.

Preparing the mediator in advance regarding potential obstacles, sensitive issues, or client dynamics is a missed opportunity. Pre-mediation communication allows the mediator to anticipate challenges and plan effective interventions. Send the mediator any documents or evidence you believe will be helpful in advancing the mediation early on. Give the mediator time to review the information you send and ask follow-up questions prior to mediation.

While counsel need not accept every suggestion, mediators often provide valuable feedback about how positions are being perceived by the other side. We have the advantage of being in both rooms. Leverage the mediator’s insights gained from private caucuses. Mediators are in the unique position to frequently understand the underlying true motivations, concerns, and pressure points of both parties.

While avoiding these five common mistakes does not guarantee settlement, it does dramatically increase the likelihood that mediation will be productive, efficient, and successful.

*Originally published in the Daily Report and reprinted with permission.

About Marci Joel

Marci Joel possesses a wealth of experience as a practicing attorney, a mediator, and an arbitrator. She mediates and arbitrates automobile, business/commercial, insurance, personal injury, and premises liability cases, among others.