The Five Biggest Mistakes Parties Make in Mediation. And How to Avoid Them. Number 1: The Surprise.

As a civil, commercial and employment mediator in the UK, I've worked over the last decade with hundreds of parties in mediation with numerous different styles and tactics. I've mediated cases with competitive to collaborative parties and everywhere in between. However, there are some strategies that people deploy in mediation that just tend not to work. The outcomes of this can range from losing momentum in the mediation to at its most extreme, derailing the mediation entirely.

In a series of blogs, I am going to look at five of the biggest mistakes that parties and their advisors make in mediation and ways that they can avoid this.

First Up: The Surprise

What is it?

The surprise is when a party decides to reveal as a tactic at the mediation, a piece of information that they have not used before. This may be bringing in a counter-argument that has never been raised before; raising an un-heard of business interest or disclosing a shock personal piece of information (for example, informing someone that they have been disinherited from a will or that they've lost a job). At its most extreme, it can involve bringing in an entirely new claim or counter-claim against the other side.

Why do Parties do it?

The rationale behind this can be complex but it often comes across that the intention is to disrupt the process and narrative in order to also change the dynamic of the negotiation. Parties may be trying to use shock and awe style tactics to disorient and overwhelm the other party, and to allow them to present concessions and offers later on as better in comparison to the narrative presented by the surprise.

Sometimes the surprise can be based around a genuinely new set of facts or a way of looking at the situation that hasn't been thought about. New decision makers may have come in who have different perspectives or want to push a new narrative on the problem.

Very occasionally, a party may be deploying a surprise to upset the other party (this is more likely to happen in personal cases) by revealing something like a disinheritance or a change in circumstances, with the aim to create conflict. This is particularly problematic within a mediation.

Why Doesn't it Work?

Despite its powerful force, the surprise on the day of the mediation is generally a very poor move tactically and the sign of an inexperienced approach to negotiation.

The reason for this is that it is not about how the surprise is delivered, but how it is received that counts, and frequently parties that deploy the surprise lose control of this (and thus control of their negotiating hand within the mediation).

The clunky surprise can be received in a few ways, all of which have negative consequences for the surprise giver. The surprise can come across that the giving party is unprepared for the mediation (reflects poorly on the giver); rude in their approach (reflects poorly); playing tactics and not to be trusted (reflects exceptionally poorly); acting in bad faith (potentially fatal) or that the surprise giver is clutching at straws by coming up with a new point and their case is therefore weak (not a great position to be in).

Rarely, if ever, does the receiver perceive the new information as persuasive or make them change their mind. Instead it may harden their position.

Ultimately, the question that always comes up with the surprise for the receiving party, is "Why have you never mentioned this apparently vital piece of information before?" In the absence of the giving party having a good reason, the receiving party will answer it for them and that answer will be negative.

After the surprise is given, and providing the negotiation can continue, the surprise giver often ends up on the back foot (even if they don't realise this), with the other side making harder offers and scrutinising more closely information back. Potential collaborative deals or bigger prizes (such as new business) are likely to be unavailable. The negotiation can get entrenched and the receiver of the surprise is likely to want something significant from the other party as "compensation" for having received the surprise.

All of which makes the 'surprise' a move that doesn't seem to improve outcomes for either the giver or the receiver.

How to Avoid the Mistake of The Surprise

The biggest issue with the 'surprise' is generally the ambush nature of it. Parties react poorly to ambushes.

However, there may be new information that needs to be revealed to be in a mediation and this can be helpful in expanding options and giving new perspectives. There is nothing inherently wrong with this - in fact sharing information and new thinking is one of the massive benefits of a mediation process.

The issue, however, is timing and how information is presented to the receiver. Getting this right changes the surprise from a poor move to a helpful (or at least legitimate) piece of information.

When I work with parties who want to bring in new information, I encourage them to do this in advance of the mediation day. This is especially important if the information is likely to be something that will vastly change what the mediation is about and parties' approaches to it. Timing is everything, and at a basic level, parties cannot receive and process completely new concepts instantly. If you want to raise a counterclaim, doing that at the mediation (or even the night before) means that a party has not had a chance to discuss it or come up with a good response to it. Instead, information like this should be raised as far in advance as possible to give time for preparation and to allow a party to actually consider the information as legitimate and needing of attention.

Secondly, parties should think about how they are going to present the information. I will work with parties on this, but they do need to be able to answer credibly the question as to "Why are you raising this now?". Answering that question right is actually frequently more important than raising the new information - as it reveals intention - but too often parties don't pay any attention to it. They need to do that and get it right.

Thirdly, parties need to think in the mindset of the receiver as they are (and not how the party may think they are or want them to be). To do this, information needs to be given in a way that is straightforward, clear and as much as possible put into the language of the receiver and addressing their interests. Parties need to be open with their dialogue here and willing to answer questions from the receiver. This strengthens how the information is received and how compelling it is.

Conclusion

As a mediator, much of my work is in helping parties to convey information effectively and build on the information learnt from others. This is a key part of mediation.

However, the poorly deployed surprise nature of information rarely works to the advantage of the party who gives it. Instead, parties need to work on timing and how they present the information to avoid it being received as a tactic, to instead being received as a persuasive piece of information.

Next Time

In the next article of this series, I dive into the second mistake parties make in Mediation: The Too Fast Offer.

About the Author - Frederick Way

Frederick Way is an experienced civil, commercial and employment mediator based in London, working with parties from; individuals, large corporates, charities and public sector organisations since 2012. In 2024, he was named Civil/Commercial Mediator of the Year at the National Mediation Awards, the highest award in UK Mediation.

Frederick works as a full-time as a mediator in both my own practice, Frederick Way Mediation, and at CEDR. He also works as a lead trainer in Mediation, Negotiation and Conflict Management as well as coaching parties and lecturing internationally and have worked with law firms, universities, public bodies and corporates.