After enough mediations, you start to notice something. The cases that fall apart rarely fall apart over money. There are of course, exceptions, where the parties are simply too far apart. The gap at the end of the day is almost never the real problem — it is the symptom.
What kills a mediation is usually decided days before anyone walks into the room, and it is almost always a preparation issue rather than a negotiation issue. Here are the three I see most often.
One: arriving without real settlement authority
Everyone says they have authority. What they often have is a number someone approved weeks ago, before the case looked the way it looks now.
So we get to four in the afternoon, the room has finally softened, both sides are moving in good faith — and counsel or the adjuster steps away to call a claims supervisor who has not read the file in months. That call almost always comes back with a no, because the person on the other end was not there. They did not watch the plaintiff testify at deposition, they did not see client or its defense expert’s opinion undermined at deposition, and they have no investment in the day.
Momentum is a real thing in mediation, and that phone call is where it goes to die. If your decision-maker cannot be in the room, get them on standby with a realistic range before the day starts.
Two: treating the opening session like a closing argument
I understand the instinct. I’ve been there before as litigator. Your client is right there, and they want to see you fight. So you open hard, you walk through every weakness in the other side’s case, and you make it personal. While it may feel good in the moment, it has a cost.
The other side’s client has just been told, in front of their own lawyer or adjuster that they are a liar or a fraud or an opportunist or that the case that their lawyer told them was rock solid, is full of holes. Nobody writes a check to someone who has just humiliated them. You have bought a little credibility with your own client and spent the next three hours undoing the damage.
The opening is for framing issues and pointing out key points, not for winning. Tell them what the case is about and what you need to settle, and save the cross-examination for trial.
Three: never having told your client the honest range
This is the quiet one, and it is the most damaging. The number lands at two in the afternoon, and it is the first time your client has heard a figure anywhere near it. Their reaction is not negotiation — it is betrayal. They look at you, not at the offer, and from that moment you are managing a relationship instead of a settlement.
The conversation about realistic outcomes is uncomfortable, and it is far easier to have in your office (or over zoom) a week out than in a mediation with the clock running. Clients can absorb disappointing news. What they cannot absorb is disappointing news that arrives as a surprise, in front of strangers, with a deadline attached. I’ve seen this happened all too many times where a plaintiff has unrealistic expectation about the true value of their case. Even worse, I’ve seen where their attorney did not explain to them what damages were recoverable under the law. Conversely, I’ve seen where the defense attorney completely undervalued the plaintiff’s case and the money in the room is a complete non-starter.
The common thread
All three are versions of the same mistake: letting the mediation be the first time something hard gets said. Authority, expectations, the honest valuation of the case — none of that should be discovered on the day of mediation.
The mediator cannot want the settlement more than you do. But if you walk in with a decision-maker who is engaged, a client who knows the range, and an opening that leaves the other side room to move, you will be surprised how often the money sorts itself out.