When Settlement is Dying in the Room: Seven Mediation Killers and How to Disarm Them  

Mon, Jan 26th, 2026 | by Miles Mediation and Arbitration | Article | Social Share

By Wiley George

While settlement is the goal at mediation, mediations do fail for a variety of reasons. After participating in countless mediations (both as a trial lawyer for thirty-five+ years, and now as the mediator for the last two), I have found that understanding why mediations fail can make you a better advocate for your clients — and enhance your chance of settlement. Here’s a closer look at seven mediation killers, and how you can disarm them.

Emotions Running Amok

I start with emotions for a reason. Most of my mediations involve large commercial disputes — often entities fighting over money or position. You expect emotions to have an out-sized role when dealing with personal injury cases, but emotions permeate commercial disputes as well. Human beings make up the entities and human beings represent them.

As Dale Carnegie famously said: “[w]hen dealing with people, remember you are not dealing with creatures of logic, but creatures of emotion.” Mediations trigger all kinds of emotions in people — anger, injustice, irritation, offense, fear, discouragement, skepticism — to name a handful. If not addressed, they easily can derail a mediation.

Because emotions are huge drivers of litigation, I look for them under the parties’ hoods in my mediation pre-calls or in between the lines of the parties’ papers. Sometimes the emotions do not rear their heads until the day of mediation. Whenever I do detect a driving emotion, I work to isolate it, listen to it, empathize with it, and address it to keep the emotion from derailing the mediation. And hopefully I have an ally in the room helping me do these same things.

Lack of Preparation

Both lawyers and parties must be prepared to mediate for mediation to succeed. Fortunately, I have had very few mediations fail because a lawyer has been unprepared.  But even when the lawyers are prepared — they have worked up their evaluations and risk analyses — the sides still might be in very different worlds. On the facts. On the law. On both. Sometimes that is because one of the lawyers is not being objective. I have seen lawyers too enamored with their clients’ positions often because the lawyer shaped the position in the first place.  An effective way to address this is to pull the lawyer aside for a frank conversation.

In other cases, the lawyers are prepared, but a client is not. The lawyers objectively have made their evaluations and performed their risk analyses, but a client is not listening. Why? Like the lawyers, the client may be too invested in positions she has helped shape or may be experiencing emotions that are clouding the client’s judgment. When a client is refusing to listen to a lawyer’s sound advice, I use my voice in the room to echo the lawyer’s point and that often works.

Other Commercial Factors

Sometimes a hurdle to settlement can be a commercial concern indirectly related to the dispute itself. For example, a concern can also arise when the dispute is only one piece of a larger commercial relationship or set of relationships, and a settlement could impact those relationships. The hurdle can be overcome when the parties and their lawyers, guided by the mediator, keep their focus on the commercial dispute at hand, but also collaborate to come up with creative solutions to minimize impact on the concerned side’s other business relationships.

The Right Person Isn’t Present

For a mediation to have the best chance of success, you need participants who are familiar with the dispute.  A lawyer who has not been materially involved in preparation of the case, or an adjuster who just picked up the file is likely not the right person for a mediation.  The senior officer in a party’s authority chain of command who has not been kept up to speed may also be a detriment to settlement.  You also need parties with authority.  When the representative shows up with some “authority,” but clearly not enough, and who lacks a meaningful lifeline, a settlement is at risk.  Even if the lifeline is available by phone or videoconference, he or she is not engaged in the same way as the folks in the room.

Figuring out whether the right persons will be participating in the mediation is one of the most important reasons to have mediation pre-calls and something I always I try to do before mediation.

Patently Unreasonable Negotiating Moves

Sometimes parties cannot help themselves. They make patently unreasonable, sometimes punitive, offers or counteroffers. Not only do they anger the opposing party, opposing counsel, or both, they can impact the relationship between the mediator — the bearer of the bad news — and the opposing party and the lawyer. A mediator once told me that it is mediator malpractice (not really a thing) for a mediator ever to deliver an offer that goes backwards believing such a move always to be patently unreasonable. As a mediator, I will deliver what a party asks me to deliver but not without sounding the alarm bells to the party about the potential impact of such a move and how it may kill a potential settlement.

The Mediation is Virtual or Hybrid

This reason may be difficult to hear, but my experience, particularly with complicated commercial disputes, is that virtual mediations are less effective than in-person mediations, and hybrids are not much better. Participants on a screen are just not as engaged in the process.  If the lawyers are not in the same room with their clients, they have less influence over them (or sometimes it is the client who needed to have more influence over the lawyer). Even if the lawyers and their clients are together, the mediator still has much less influence over everybody.

My own statistics bear this out. With that said, the cost savings of a virtual mediation is unquestionably warranted under certain circumstances. For example, when you have a dispute that can be readily valued, and all sides have experienced and sophisticated participants, they can get a dispute settled even when not in the same room(s). It does happen a lot.

You Picked the Wrong Mediator

Finally, mediators are not one-size-fits-all. We come in all shapes and sizes with widely varying experiences, temperaments, approaches and levels of preparation. Choose the wrong mediator and you might end up with a short, unsuccessful day. As counsel, you know your dispute and its players. Do your due diligence and pick a mediator who fits your situation and you’re much more likely to have your case settle.

*Originally published in Texas Lawyer and reprinted with permission.

About Wiley George

Wiley George has been a full-time mediator since 2023. He mediates the types of commercial cases that he handled as a trial lawyer, including antitrust, bankruptcy and restructuring, breach of contract, commercial torts, construction, covenants not to compete, franchise and distribution matters, fraud, insurance coverage, intellectual property, legal malpractice, mergers and acquisitions, oil and gas/energy, public law, and securities.