The 10 best ways to guarantee your mediation fails

At 9:00 a.m. the mediation began exactly on schedule.

The lawyers shook hands. The mediator delivered the familiar opening remarks about good faith, open minds and the virtues of voluntary resolution. Everyone nodded with the solemn politeness of people who have heard this speech many times before.

At 9:30 the plaintiff demanded $5 million.

At 10:15 the defendant offered $25,000.

By 11:00 the lawyers had stopped making eye contact.

At 1:00 p.m. the mediator had walked approximately seven miles between conference rooms.

At 4:30 someone observed, with weary authority, "We're obviously too far apart."

At 5:00 everyone left convinced the mediation had been pointless.

Three months later--after another $200,000 in discovery skirmishes, expert invoices, and motions no judge was particularly excited to read--the case settled for $875,000.

Anyone who has practiced litigation for more than a few years has witnessed some version of this story.

The frustrating part is that mediations often fail not because settlement is impossible, but because the participants--usually intelligent, experienced professionals--approach the process in ways that make settlement nearly impossible.

For lawyers determined to ensure their mediation goes nowhere, the following strategies have proven remarkably reliable:

1. Arrive completely unprepared

Preparation is one of the great overrated virtues of modern litigation.

If your goal is to avoid settlement, show up at mediation having given the case only the amount of thought strictly required to appear competent.

Do not analyze the weaknesses in your position. Do not calculate a realistic damages range. And certainly do not develop a negotiation strategy.

Nothing advances a mediation quite like hearing your lawyer say:

"I'll have to think about that issue."

Especially when it is an issue that has been in the pleadings or discovery for eighteen months.

Prepared lawyers treat mediation like an important negotiation.

Unprepared lawyers treat it like a long meeting where they will figure things out as they go.

The latter approach has the added benefit of ensuring that no one feels confident enough to move.

2. Bring a client who thinks mediation means immediate vindication

Many clients arrive at mediation with an appealingly simple theory of the process: the mediator will quickly recognize the obvious righteousness of their case and persuade the other side to surrender.

If you want the mediation to collapse, do nothing to disturb this belief beforehand.

Do not explain that:

• litigation involves risk

• juries are unpredictable

• settlement requires compromise

• or that the first numbers exchanged are rarely the last.

When the client hears the first discussion of possible settlement and quietly asks:

"Wait... we'd actually accept that?"

You can often feel the room temperature change.

Successful mediation usually begins long before the mediation itself--with lawyers explaining to their clients that resolution rarely feels like victory.

3. Make an opening demand that signals you are not serious

Opening numbers matter--not because they determine the final result, but because they signal whether the negotiation is real.

If you want to stall the process immediately, begin with a number that bears only a distant relationship to the case.

An effective opening demand should prompt the opposing party to say something along the lines of:

"Well, this is going to be a long day."

Or, in more candid moments:

"Why are we even here?"

Once credibility disappears, it is surprisingly difficult to reintroduce it later in the afternoon.

Negotiation, like litigation, runs heavily on signals. And nothing signals "this will be pointless" quite like an opening number designed primarily for dramatic effect.

4. Explain that your case is a guaranteed winner

Nothing eliminates the possibility of settlement faster than two lawyers confidently explaining that their respective cases cannot possibly lose.

Common expressions include:

"We can't lose this case."

"Any jury will see right through their argument."

"The law is completely on our side."

And if you're really lucky you hear the words "slam dunk."

These statements are emotionally gratifying and occasionally even true.

But they have a predictable side effect: if both sides believe victory is inevitable, neither has any reason to compromise.

The inconvenient reality of litigation is that every case contains risk. Witnesses perform unpredictably. Judges issue rulings that surprise everyone. Jurors occasionally reach conclusions that seem to have emerged from an entirely different trial.

Acknowledging those risks does not weaken a case.

Pretending they do not exist simply makes settlement harder.

5. Treat the mediator as a very polite courier

Some lawyers treat the mediator as a highly courteous messenger whose primary responsibility is transporting numbers from one room to another or from one Zoom breakout room to another these days.

If your goal is to prevent settlement, ignore everything else the mediator says.

Experienced mediators have watched hundreds--or thousands--of negotiations unfold. They develop a sense for what is blocking progress, what arguments resonate and what numbers actually close cases.

Which is precisely why disregarding their observations can be such an effective strategy for keeping the dispute alive indefinitely.

A good mediator does not merely shuttle offers.

They manage expectations, emotions, timing and momentum--the invisible mechanics of negotiation that rarely appear in law school casebooks.

6. Move in increments so small they require a microscope

Few things drain life from a mediation faster than microscopic negotiation.

For example:

Demand: $2,000,000

Offer: $50,000

Demand: $1,990,000

Offer: $52,000

At this pace, the parties are projected to reach the midpoint sometime around the year 2037.

Assuming the mediator has not retired by then.

Movement in negotiation sends signals. Substantial movement suggests engagement and not necessarily weakness.

Tiny movement suggests something else entirely: that everyone intends to be here all day without actually getting anywhere.

7. Take everything personally

Litigation has a curious ability to transform routine professional disagreements into matters of personal honor.

Mediation works best when those emotions cool down.

If you would prefer the opposite outcome, make sure every dispute feels like an attack on someone's integrity and/or a critique of their competence.

Helpful techniques include:

• revisiting every perceived discovery abuse

• questioning opposing counsel's professionalism

• recounting depositions from two years ago in vivid detail.

Nothing advances settlement discussions like a spirited debate about who behaved worse during document production.

8. Focus entirely on being right

Lawyers are trained advocates. We build arguments, marshal evidence and demonstrate that the other side is wrong.

These are excellent skills for trial.

Mediation, unfortunately, rewards a different talent: solving problems.

If your goal is to prevent settlement, concentrate exclusively on winning the argument rather than resolving the dispute.

Being right is deeply satisfying.

It is simply not always the same thing as getting the case settled.

9. Ensure no one present has real authority

One of the most efficient ways to stall mediation is to arrange things so that every meaningful decision must be approved by someone who is not in the building or even on the Zoom.

Ideally that person should be:

• an executive several time zones away

• an insurance adjuster with a very full afternoon

• participants with inadequate or no internet connection

• or a committee that meets next Thursday.

Nothing builds momentum quite like hearing, repeatedly:

"I'll need to check with someone" or better yet "my representative needs to speak to their boss but he's at his kid's soccer game."

Particularly when that someone has never actually read the file or even spoken to counsel.

10. Declare the mediation a failure at 3:00 p.m.

Many mediations look hopeless in the middle of the afternoon.

Numbers are still far apart. People are tired. The mediator has walked enough steps to qualify for a fitness award.

This is the ideal moment to conclude:

"We're obviously too far apart."

Experienced mediators know that some of the most productive negotiations occur late in the day--or even later, after everyone has had time to think about what they heard.

Declaring failure prematurely has one clear advantage: it guarantees that none of that inconvenient progress will occur.

Conclusion

The encouraging news about all of these mistakes is that they are easily avoided.

Most mediations fail not because settlement is impossible, but because the participants approach mediation the same way they approach trial--focused on persuasion rather than resolution.

Lawyers who prepare carefully, manage their clients' expectations, negotiate credibly and make intelligent use of the mediator often discover something surprising: Mediation works. Not always. But far more often than the war stories would suggest. And occasionally it even saves everyone from spending another year arguing about interrogatories--only to settle on the courthouse steps the night before trial.