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', 'Ignoring Your Own Weak Points' and 'Not Understanding What Matters to the Other Side'. Click on the names to read those now.
In this final article, I'm going to look into the the biggest lost opportunity in a mediation: Not Using the Mediator Effectively.
Not Using the Mediator Effectively covers all of the actions where a party fails to use the unique potential of mediation and the mediator to their advantage. They may be misunderstanding the mediator's role or being overly cautious, or by contrast assertive with the mediator. In doing this, the party is likely to diminish their position in the mediation and reduce their persuasiveness to the other party.
There are three core ways that a party can use the mediator ineffectively.
The fundamental is misunderstanding the role of the mediator and treating the mediator as having a responsibility that they do not have. A party may treat the mediator as a judge or decision maker, and spend time trying to persuade the mediator that they have the winning case. As the mediator has no decision making ability, this is a waste of time.
The second and third ways of getting it wrong are to do with treating the mediator as a messenger delivering packages from one side to the other with little input from the mediator into what is in the packages or its implications.
With the overly cautious party, the mediator is not invited into any confidences. The party is reluctant to divulge anything to the mediator for fear of it being leaked and the party treats the mediator as a pleasant waiter - someone who can seat them and take their order across and provide a bill, but not someone who is invited to join in with the conversation at the table. The mediator in this situation can find that they are leaving the mediation still not feeling that they really know the party and vice versa.
The counterpoint to the overly cautious party, is the tactical and demanding party. This party still uses the mediator as a delivery person but they treat them as the deliverer of bad news and to allow the party to be able to maintain an overly defensive position. At absolute worst, the mediator is asked to basically act like a hired gun and go and tell the other side that they don't have a case or to make an insult offer. The mediator in this scenario may be treated as though their role is to argue for the party as a further advocate, rather than be a mediator.
The main reason that parties use mediators ineffectively is because of a desire to have increased control and certainty in a mediation. However, parties generally are actually weakening their power within a mediation by doing this.
Where a party wants to treat the mediator as a decision maker, this is generally because the party is looking for reassurance about their case, but also perceives the mediator as being more reasonable (or less daunting) than the other side. Interestingly, it is actually relatively rare for a party who wants the mediator to agree with them, to then ask the mediator to go and tell the other side that they are right. Instead, parties are generally just looking for validation. This can also be similar with parties who treat the mediator as a therapist or business advisor. They want reassurance that they are right. The issue with this is that the mediator does not actually make any decision and a party who has used the mediation to become more convinced that their case is great has not made any progress with the other side in getting to a settlement.
With parties who treat the mediator as a messenger, this is often about control and wanting to have the process go a certain way. The party may not want to explore with anyone (including the mediator) any challenges to their case and instead just want to share information or make offers. The party may also feel very confident in their case and ability to make offers and thus see conversing with the mediator as a waste of time.
Where the party wants the mediator to be the go-between and make challenging offers, this is normally because the party knows that the offer is difficult but thinks that it can be explained more persuasively by the mediator. It also gives the party a degree of comfort and separation from the unpleasant offer - they are not making it, it's the mediator that is. The party can therefore to an extent dissociate itself from the offer and go for offers that are "tougher".
Again with both of the above, there can be a misunderstanding of the mediator's role seeing them as anything from a passive servant through to a hired gun.
The reason that these strategies don't tend to work is that they ignore the reality of what is happening for the other side in the mediation. Instead the party is operating in its own bubble and is not effectively using the mediator or opportunities of mediation.
Where the party is appealing to the mediator to agree with them or to make a decision, they are fundamentally missing the point of the mediation. It actually doesn't matter if the mediator does agree with them, what matters is their ability to reach a settlement with the other party. Therefore a party that is spending its time appealing to the mediator to agree with it, is largely wasting its time. Similarly, as mediation is not about the parties agreeing on who is right or wrong, it can also be a waste of time in trying to spend effort to persuade the other party that you are right. They are unlikely to agree.
This is not to say that a party should not talk to a mediator about its position or the merits of its argument. BUT, that time should be measured and counterbalanced with understanding the other side and what is needed to help to settle the case. The mediator is so much more valuable than this.
Where a party uses the mediator as a passive messenger, they are missing some of the fundamental advantages of a mediation, namely the ability to work through information and offers with the mediator as negotiation coach. They are also missing the ability to understand the mediator's unique perspective as someone having conversations with the party who they need to agree with their proposal. Ultimately, if you are just using the mediator as a messenger you might as well just send offers by email and not have the mediation.
With the party using the mediator as the bearer of bad news or tough offers, there are a number of errors being made. An "insult" offer is an insult offer whether it is made by the party or via a mediator. The other party is rarely so clueless as to not realise this. In fact, by making that sort of offer via a third party (as opposed to directly) it actually makes the party seem less sure of themselves and that they are hiding behind the mediator. This is a poor position to be in. There is also a practical point that the party that is overly assertive to the mediator is also likely to not be hearing what the mediator is saying back to them effectively and thus also closing off roads to settlement. Sadly, the party who engages in a shouting match with the mediator is normally only shouting at themselves.
What compounds both of the above errors are that they fail to understand the nature of mediation and how parties settle. At the end of a mediation with a settlement, there needs to be a shared understanding by those involved as to how settlement was reached and why the parties are doing what they are doing. Parties do not need to understand every nuance of each other's motivation nor do they have to agree on who is right/wrong but they do need to have an understanding of the story of the settlement. Parties that are using the mediator to be overly removed from this shared understanding are difficult parties to trust in a settlement. And this can result in no deal.
This mistake needs to be avoided from the very outset of choosing to go to mediation. Advisors to parties need to be very clear what mediation is and what it isn't. This is about taking the time to set up the purpose of the mediation and selecting a mediator who is suitable for the parties as a mediator. Many mediators have separate practices as decision makers but that is not their role here.
In working with the mediator before the mediation, it is worth sharing concerns and questions about the process. Parties can also talk with the mediator about how best to work with them. This helps as the mediator can explain and also offer reassurance and guidance. Mediation is not a dark art- a good mediator should be able to have an open dialogue with a party on this.
Parties frequently underestimate how much time can be spent on preparation for a mediation. If a case is complicated because of the facts or the relationship between the parties, it is worth taking the time to get preparation right, and doing this with the mediator and the other party. Parties should avoid the strategy of just seeing the mediation as a day to turn up at and force through points and offers. There is always a better way to present any point.
At the mediation, private conversations with the mediator are confidential. Parties should use this to trust the mediator and work with them. The mediator is amongst other things a negotiation coach and can work with the parties to help them to understand situations and think through solutions. I have had many cases where parties have discussed potential offers that are in the end not made - this is completely fine and helpful. Spending more time with the mediator is often a good thing.
In private conversation, parties need to be ready to receive some push-back from the mediator. This will be based on what the mediator is observing from the mediation generally and based on helping the parties to get to a settlement. A challenge from the mediator is normally presented in an open way and is not presented as "you should do this". Instead the mediator may be challenging an assumption or testing a hypothesis or potential offer. Here treat the mediator as a critical friend - it is part of their role. The best way to handle a challenge is to consider it openly. This does not mean that you have to accept it but the wrong way to deal with it is just to automatically reject it.
Finally, parties should work with the mediator and trust them in offer communication. The most successful parties in mediation generally are those who have built a good relationship with the mediator and the other side within the mediation to help get to settlement. A good relationship means that their approach to and offers made in the mediation seem logical, clear, proportionate and respectful.
Mediation is a unique process and parties and their advisors need to think about how best to approach the mediation.
The mediator has a special role in that they are able to see both sides of the dispute and that they are also acting as a neutral facilitator and negotiation coach. Parties who ignore this role and treat the mediator as a messenger are missing a valuable aspect of mediation.
Instead parties should work with the mediator throughout the process to enhance their negotiation position and potential for settlement. This starts with effective selection of the mediation and preparation and continues through the mediation day by trusting the mediator and working with them to help the party's information and offers to come across as constructive towards settlement and persuasive.
Ultimately, the strongest performing parties in mediation are those that are able to work with the mediator and other party to reach settlement.
This is the final article in this series on The Five Biggest Mistakes in Mediation. If you've missed any of the previous articles, they can be accessed below.
Previous Articles in this series
Mistake 1: The Surprise
Mistake 2: The Too Fast Offer
Mistake 3: Ignoring Your Own Weak Points
Mistake 4: Not Understanding What Matters to the Other Side
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.