The Five Biggest Mistakes Parties Make in Mediation. And How to Avoid Them. Number 3: Ignoring Your Own Weak Points

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

Previously, I've looked at 'The Surprise' and 'The Too Fast Offer'. Click the names to read those now.

This week, I'm going to look into one of the more mistakes that people don't even realise they're making in mediations: Ignoring Your Own Weak Points.

Mistake Number 3: Ignoring Your Own Weak Points

What is it?

Ignoring your own weak points is the natural tendency in a mediation for a party to focus only on their own positive interpretation of the case and what they want, and to ignore any points raised by the other side, or weaknesses in their own case.

This behaviour can manifest in a few ways. A party may have come to the mediation having done almost no preparation on counter-arguments to their own view, or what the other side want. They will present their case as rock-solid with no flaws at all and will maintain that there is almost no chance of litigation risk for them (beyond perhaps a token acknowledgement that there is always the possibility of a rogue judge)

When challenged on weak points by either the other party or the mediator, the party may become defensive and question why the other party is asking about it. They will often dismiss it as something that doesn't need to be worried about or that they've already considered. A classic phrase here is "We're aware of that point but we don't see it as relevant to the mediation". If they are competitive, they may push back on the other side's weak points with the challenge that "maybe they should be worrying more about that, than this issue".

When they get to the offer stage, they will normally ignore completely any negative points against them in making the offer, or if they do respond to them, they gloss over them in such a way, that the effect is the same. Whilst presenting their own case as immaculate, this party can be very different in their estimation of the other side and over-emphasise their weak points (and how lucky the other party is to receive any offer).

Whatever the behaviour, the overall theme is the same: We want to push this narrative of our case and negotiation, and we don't want to hear or discuss any alternative versions.

Why do Parties do it?

There are two reasons that parties ignore their own weak points in a mediation.

The first, and less common, is that the party has not prepared sufficiently for the mediation and is genuinely ignorant of their own weak points. This may be because the party has not been that involved in the litigation prior to mediation and had a hands off approach or because there is a collective focus on only the strengths of the argument. It can also be that the party is being protected from considering the risks fully by their own advisors

The second, far more common, reason is that the party is aware of their weak points but has decided that it's important to show a face of strength and to deliberately focus only on their strong points and ignore the weak points. The party here thinks that by doing this they can either force through their own narrative as dominant ("We're great and deserve everything; You're awful and deserve to give us what we want") or minimise any difficult conversations on weaker points. The party here is trying to dictate the way that the mediation goes so that they can get what they want and get out.

Why Doesn't it Work?

Unfortunately, ignoring your weak points is rarely a winning strategy.

In the situation where a party is genuinely ignorant of their weak points through lack of preparation, this is a very difficult position for them to be in. It means that they will be less prepared for the situation when a weak point is raised by the other side and the follow on from this of a lower received offer.

Parties in this situation can go into complete denial mode (or alternatively, shock - see the 'Surprise' article) and struggle to process it. They may start to doubt their own case entirely (which will result in worse outcomes for them as they will no longer be able to gauge how good or bad a received offer is) or more commonly just find that they don't have a full grasp on the scenario or mediation and have to scramble to respond. In this situation, parties become more reliant on their advisors and settlements become more difficult. Offers made normally have no discounts for the weak point as parties struggle to factor it in and the result can be no deal. It should be noted that this can be an equally poor position for the other party to be in (for reasons covered in the 'Surprise') if they are raising a point that the other side had never contemplated previously.

In the more common scenario of bravado in ignoring your weak points, the party makes one very big misjudgement. They make the misjudgement because they are not talking about it, it's not being talked about in the other room. It normally always is.

The issue with being silent is that if you are not talking about your weak point, you have no input or control over how it is considered by the other party. It can often come across as worse with the other party assuming that you are deliberately avoiding talking about it because you are worried about it and therefore it's a major point. They will not be ignorant of it when they are making offers, and they will rely fully on their own analysis as to how to pitch it. The party who has said nothing is therefore missing a chance to influence the negotiation by minimising the issue or countering it.

To give an analogy, imagine that you are selling a house but that you are aware that there is an issue with rising damp in the property. You could when selling it, completely ignore this point in the negotiations and refuse to countenance it in discussions. Even when shown surveys that prove it, you could say it's not correct and that there is no discount.

The problem here is that the buyer at no point will not be aware of the problem of rising damp or agree with you that it doesn't exist. They will have smelled it; their survey tells them that it's there; they know it's an issue. Rather, if they do make offers, they will factor their views into any offer and make them lower because of this and based on what they're comfortable with. Even if you are unaware of a discount, you will have received one because of this.

The point, therefore, is that the party here loses both their right to discuss and mitigate the weak point (with its value being decided by the other side) but also frequently the ability to discuss weak points for the other side and to properly value your own strong points. It all just becomes a mush and perceived as uncredible.

How to Avoid the Mistake of Ignoring Weak Points

When looking at weak points, the most critical point is to have identified them in advance and prepared for how you are going to actively address them at the mediation.

In identifying weak points, it is important to give yourself enough preparation time for a mediation. Those attending, really need to know their case and have had a chance to discuss it from all angles. As well as thinking about what they want to achieve, they need to look at what the other side is looking at and the arguments raised. Parties need to take a holistic approach in looking at the situation - what are the big picture points here and what are the more nuanced points? How do they get given appropriate value and weighting in the conversation?

It can help in doing this (especially if it's long running litigation) to bring in people with new eyes to the dispute to talk some of these issues through and ask them what they see. It also helps to look at it through different lenses such as legal, commercial and personal points for those involved. You can also ask the mediator about this and it's common for me to discuss concerns and how to handle them confidentially with parties during the pre-phases of the mediation.

At the mediation, it is important to have a strategy for how to handle weak points (and that strategy should almost never be "do nothing"). Here, it can be helpful to move away from focusing on neutralising or obscuring a weak point entirely, but instead to think about how it can be given appropriate weight in the conversation.

There are approaches that parties can take to actively address the issue (especially if it's one that the other side is pressing) to show that the party is engaged with it and has a plan to deal with the weak point. At its easiest, discussing the weak point may reduce its effect through providing an alternative perspective. There may also be concessions that can be offered on it - apologies; non-monetary solutions - which could resolve the issue.

Where offers are being made, whilst it may seem counter-intuitive, bidding against yourself in relation to a weak point with a credible amount may actually be a sensible move. For example, "We recognise that this is an issue and so we are going to give a discount of £15K". This anchors a negotiable amount to the issue and prevents the other party from coming back with the point, "you haven't mentioned this, so we are starting with a discount of £60K" for example. This would be similar to the seller of the house with rising damp, addressing the fact that it has this when selling and saying what they value the discount as to start with.

Finally, raising the weak point and giving your value to it, allows you as the party to have more voice in discussing other weak and strong points and give them relative value. So, as well as discounting your own weak point, you can ask the other party to discount a point you identify, whilst also asking for weighting to be given to your strong points. In doing this, you have much more credibility in the game and are identifying trade-offs.

Conclusion

Every party at a mediation will have weak and strong points and there is almost no party turning up to a mediation with a perfect case. In reaching a settlement, parties need to be able to talk about their case and also what they need from the mediation in a way that is credible and persuasive. Ignoring your own weak points reduces that credibility and persuasiveness. You either look unprepared or as though you are deliberately not engaging.

Instead the best strategy is to identify actively all of the points in your case and think about how to give them appropriate weighting in a way that allows for greater control. In doing this, parties need to be realistic and open, whilst also working out what they want to prioritise and what they don't.

Finally, parties can use the mediator to work through these issues and to help with understanding the relative strengths of their points and ways that they can handle both the strong and weak points of their case to save face and get to a negotiated outcome.

Next Time

In the next article, I will be looking at the fourth big mistake parties make in mediation: Not Understanding the Other Side

Previous Articles in this series

Mistake 1: The Surprise

Mistake 2: 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.