Attorneys can unintentionally derail the resolution process during mediation. In “10 Ways Attorneys Sabotage Mediations (and How to Avoid Them)”, we explore common missteps—like unrealistic expectations or ignoring the mediator’s guidance—and provide actionable strategies to keep negotiations on track. Here’s how to identify and avoid these pitfalls for more successful outcomes.
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Aggressive or Hostile Behavior
How It Sabotages: An adversarial stance escalates tension and hinders constructive dialogue.
How to Avoid It: Attorneys should focus on collaboration, maintain professionalism, and prioritize shared interests over rigid positions.
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Lack of Preparation
How It Sabotages: Poor preparation leads to misinformation, wasted time, and unmet expectations.
How to Avoid It: Attorneys must thoroughly prepare by gathering key documents, understanding client goals, and crafting negotiation strategies in advance.
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Failure to Listen
How It Sabotages: Missing critical information or signals can derail the negotiation process.
How to Avoid It: Actively listening, seeking clarification, and validating opposing parties’ concerns fosters trust and ensures progress.
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Unrealistic Expectations
How It Sabotages: Setting unattainable goals can lead to client frustration and stalled negotiations.
How to Avoid It: Manage client expectations with honest assessments of risks, potential outcomes, and alternatives.
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Inflexibility
How It Sabotages: Refusing to deviate from a set position limits opportunities for compromise.
How to Avoid It: Stay open-minded and explore creative solutions to achieve mutually beneficial outcomes.
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Excessive Focus on Legal Arguments
How It Sabotages: Overemphasizing legal precedent overlooks practical solutions and underlying interests.
How to Avoid It: Balance legal considerations with a focus on workable resolutions that satisfy all parties.
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Lack of Empathy
How It Sabotages: Failing to understand or acknowledge opposing perspectives undermines trust and rapport.
How to Avoid It: Attorneys should practice empathy by considering the emotions and viewpoints of all parties involved.
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Failure to Control Emotions
How It Sabotages: Letting emotions take over escalates conflict and derails negotiations.
How to Avoid It: Attorneys should stay calm, manage emotions professionally, and prioritize constructive communication.
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Inadequate Client Communication
How It Sabotages: Misunderstandings and distrust can arise from poor attorney-client communication.
How to Avoid It: Ensure regular, clear communication about the mediation process, client options, and realistic outcomes.
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Ignoring the Mediator’s Guidance
How It Sabotages: Disregarding mediator input prolongs conflict and undermines the process.
How to Avoid It: Respect the mediator’s role and consider their suggestions as valuable tools for resolution.
By recognizing these pitfalls and implementing these preventive strategies, attorneys can improve the mediation process, ensuring more effective and successful resolutions.
Ready to make your mediation process more effective? Trust Ken Strongman, an experienced mediator, to guide your negotiations and achieve successful resolutions. Contact Ken today to ensure a smooth and productive mediation experience!
About the Author: Ken Strongman is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA and president of The Mediation Society.
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