Almost every meaningful lawsuit goes to mediation, so it is important to get it right. Based upon hundreds of mediations, here are my five common mistakes to avoid.

  1. Don’t Expect to Win

In mediation, you must “give a little to get a little.” If you expect the other side to voluntarily capitulate, you will be sorely disappointed. Remember that a fair settlement is often “when both sides are equally displeased.

2. Don’t Offend the Other Side

While it may make you or your client feel better, insulting the other side does not help the mediator seek conciliation and achieve a settlement. Treat everyone, including the opposition, as you would want to be treated. Collaborate rather than compete.

3. Don’t Negotiate with the Mediator

Too often, the parties or their counsel try to negotiate with the mediator and do not speak candidly and honestly about their goals and true settlement positions, which only makes the mediator’s job harder. Only if the mediator understands your true positions can he or she be most effective.

4. Don’t Bring a “Bottom Line”

In too many instances, parties form a rigid bottom line entering the mediation, without the benefit of hearing from the other side or the mediator. Keep an open mind, listen, and carefully consider your options. Allow the mediator to move the parties and make a decision at the end of the day, whether the other side’s final offer is preferable to continued conflict or not.

5. Don’t Bluff a Final Offer

Credibility must always be maintained to remain an effective negotiator. You cannot afford to tell the mediator or the other side that a number is your “bottom line” if it is not. Or threaten to walk away if you cannot afford to do so. Choose your words carefully and remember that your tactics and tendencies will be remembered in future mediations.

If you keep an open mind and avoid these common mistakes, you are more likely to settle your dispute at mediation.