The Five Biggest Mistakes Parties Make in Mediation. And How to Avoid Them. Number 4: Not Understanding What Matters to the Other Side

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', 'The Too fast Offer' and 'Ignoring Your Own Weak Points'. Click on the names to read those now.

This week, I'm going to look into the one of the most fundamental mistakes at mediations: Not Understanding What Matters to the Other Side.

Mistake Number 4: Not Understanding What Matters to the Other Side.

What is it?

Not Understanding What Matters to the Other Side is one of the biggest mistakes that a party can make in a mediation and a great way for the mediation to fail. If you don't understand the other side you are essentially talking to yourself and proposals you make are going to fall on deaf ears. Unsurprisingly, this leads to deadlock and can result in no deal.

There are a number of different ways that failure to understand what matters to the other side can manifest:

At its most basic, a party may not even know who the other side is. They may not know how well commercially the other side's business is doing (or even what their business does). They may not understand how the individuals for the other side are inter-related to each other or what their individual roles and ambitions are. They may not know anything about the other party - other than they are the party bringing or defending the dispute.

At a second stage, the party may not understand the other party's views on the dispute. They may have assumed that the dispute is just what is said in the papers, or alternatively that it is similar to other types of disputes with similar claimant/defendants. They may be relying on stereotypes and preconceptions to help them to determine what matters to the party and preparing strategies based on that. For example, a party might stereotype that all claimants in personal injury claims are going to be "emotional" during the mediation and want an apology, even if that is not what is stated. Parties here are preparing for the party they expect, not the party that has appeared.

At a final stage, when making offers, the party who has not understood the other party may make offers that don't land at all - again, presenting offers based on stereotypes or conversely on what they think a party in this position should want. They may ignore the individuals on the other side of the table and instead continue to present offers that they expect the other side to want to accept. Where offers are presented, they may be presented in a generic way and not tailored to the individuals opposite.

The overall effect of this is that parties can miss massively important points for the other party and fail to make persuasive offers. It is impossible to settle a mediation without getting the other party to say "yes" and so these mediations will fail.

Why do Parties do it?

There are a few reasons that parties fail to recognise what matters for the other side.

As a starting point, there can be a lack of interest in the other side and attention as to who they are. Understandably, when a party is in conflict finding out about the company who you are in litigation with can seem like the last thing you would want to do. Instead they are just demonised as the enemy, or placed into a bucket of generic claimant/defendant. This, however, misses understanding the nuances of what is going on for the party and who they are.

To give an example, I have had a case where a party did not appreciate that the two principals on the other side were siblings. They just saw it as a business and when informed of it, were nonplussed. However, this is a really important piece of information. This indicates that the business has a family component, which brings up questions about its origins and may also involve sibling dynamics that influence how the two principals interact with each other and approach potential offers. An interesting point about family businesses that other parties fail to realise is that it can mean there is no escape from the dispute for those involved - the people you might turn to for normality (your family) are also involved in the dispute. This all adds to the intensity of the dispute and attitudes towards settlement. So, to solve the dispute you need to understand your counterpart.

There can be a point here about parties and their advisors, choosing not to engage with some of the wider context to the dispute beforehand, because they see it as a waste of time or not what "professional litigation" is about. But it is... You cannot resolve the Montagues and Capulets dispute in Romeo and Juliet without understanding who the two sides are, their history and their values.

As well as being ignorant as to who the other side is, there can also be a tendency for a party to focus on its own case and bracket the other side off into a generic type of party. As mentioned above, stereotypes come into play here with the party assuming something like "I've dealt with 100 claims in the constructions sector, I know that all construction companies are worried about is x" or similarly, "what really matters here is money..., that's all that claimants wants". This may not be inaccurate and the party may be right - however, if the party has not actually checked this assumption, they can be making all sorts of mistakes when they meet the one construction company who is not acting as above.

Finally, within the mediation, the mistake arises when the party fails to listen to the other side or dismisses what they are saying. I have seen this a number of times when a party will say something like "We just see this as a commercial issue" at an early stage of the mediation and the other party responds "Well, I saw it as a point of principle - you went against what you and I agreed". If the first party throughout the mediation ignores that the other party has a point of principle issue and continues to just push commerciality, they will be failing to deal with an important point for the other party and they may find that their offers don't land. They are just thinking from their own point of view. They need to address issues for both parties.

Why Doesn't it Work?

As an obvious starting point, not understanding what matters to the other side is a mistake, in that parties can make suggestions and offers that either don't persuade or are actively detrimental to the negotiation. There is nothing more annoying for another party than saying that you need something, and the other party coming back either silent on that point, or worse, actively offering something that goes against this need.

More fundamentally, not doing your homework on the other party rarely pays off. Within the mediation, a revelation about a business (for example, that they have financial constraints) can cause negotiations to derail. It also just shows a lack of interest if a party has turned up and doesn't know something fundamental about the other party, such as what they do, or who individuals at the organisation are.

Generally, within a mediation parties need to be as respectful of each other and the uniqueness of the mediation as possible. People and parties respond generally badly to being given something that is seen as generic or done without thought. A bespoke proposal meanwhile has more weight.

Think about an example of a bridal shop trying to sell a wedding dress to a bride. Imagine the salesperson tells the bride "You should buy this wedding dress- it's white which most brides want; it's mid-priced - which I assume is good for you and your budget; and I don't know what your wedding is like, but this will do the job."

I can guarantee you that NO bride is going to be excited by the thought of the above dress. However, the SAME dress could be sold to many people, if it feels bespoke and responds to something the bride has said. Some of the points may be relevant and others may be less relevant depending on the bride herself. It is the same in mediation - the points need to be bespoke so that the offer feels persuasive.

Where a party doesn't feel listened to or a point has been ignored, they will respond poorly. They normally won't accept the offer and they might decide to take their chances elsewhere. This is where a party makes a decision that they have a better alternative to the negotiation outside of this negotiation. In the scenario above, it's similar to the bride going to another bridal shop as she's not getting the offer she wants - she might even buy the same dress from somewhere else if it's sold better to her.

A party who hasn't been listened to will also be far less likely to listen back to you and what's important from your perspective, further exacerbating deadlock. This can cause the mediation to end up circling with neither party understanding each other.

How to Avoid the Mistake of Not Understanding What Matters to the Other Side

Avoiding this mistake starts from before the mediation process begins. Parties should make sure that they are actually engaging with the other party and thinking about how much they understand them.

Preparation is key here. Parties should have read into who the other side are and what their business does and what its ambitions are. They should look at trying to understand the relationships of those involved and be respectful of these. Overall, there should be an attitude of curiosity. This is not about gaming the other side; rather it is about recognising the wider contexts to what is going on in the litigation and thinking through how that affects the litigation and mediation.

As far as possible, parties need to avoid stereotypes and preconceptions. This can be tricky as our preconceptions are built on experience and there may also be unconscious bias at play. The best way to deal with this is to try and actively be aware of it in pre-planning. When thinking about strategy and why the other side wants something, test the negotiation team by asking "How do we know they want that?". Avoid assumptions of motivations unless you have clear facts on this. This can also develop during the mediation, working with the mediator on challenging preconceptions and also helping to understand what matters to the other side. The question "Why?" is one that people don't ask enough - Why do they want this?

Within the mediation, it pays to listen to what the other side is actually saying, not what you think they want. Parties can be reluctant to do joint meetings seeing them as a waste of time as they already know all the information. From having done many mediations, I have reached the opposite conclusion. Joint meetings are the most useful meetings, as long as you are willing to listen. People always say what they want. In order to do this, it can help to have someone at the meeting who is just listening for what the other party (particularly the principals) are saying. As mediator, I will also be listening out for this to pick it up.

Finally, as noted above, offers need to address the points that actually matter to the other side and be and feel bespoke. The party needs to explain why it made the offer and how it fits with what the other side has said. This does not mean that you have to compromise or give up a point, but you do need to address it. To give the bridal example, where a bride wants a dress very quickly, a salesperson might say "I understand that you want the dress within 7 days but that is not going to be possible. However, we can produce the dress in a quicker time frame (21 days) if you can agree to pick from one of a range of dresses. Does that work?". Here the bride's concern is addressed within the offer without agreeing with the demand. Just being silent or saying "You can pick from a range of dresses available in 21 days" is less strong.

Conclusion

So, not understanding what matters to the other side and how to address it is a big mistake in mediation. Parties can completely misunderstand the other party or make offers and proposals which fail to take into account the nuance needed for a proposal to make it persuasive.

Information shared within a mediation process should always be understood as important and potentially helpful to settlement. Parties can win themselves points by responding to these issues. The party who picks up points that the other side makes (even if disagreeing with them) does better than the party that ignores the points.

Finally, make sure your offers are bespoke and responds to the information shared by the other party. Mediations are all about giving the information that is helpful and persuasive at the right time and that makes both parties recognise the uniqueness of the solution. Mediation is the opportunity to get out of the factory mode of litigation solutions and into the tailor-made thought out answer.

Next Time

In the next article, I will be looking at the Fifth big mistake parties make in Mediation: Not Using the Mediator Appropriately

Previous Articles in this series

Mistake 1: The Surprise

Mistake 2: The Too Fast Offer

Mistake 3: Ignoring Your Own Weak Points

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.