Mediation is not simply a more formal version of traditional bargaining. It is a fundamentally different negotiation environment — one that is non-zero-sum and interest-based. When attorneys approach mediation with rigid, “fixed pie,” and win-lose thinking, they often hinder settlement rather than advance it. Successful mediation requires a deliberate shift in mindset from positional advocacy to collaborative problem-solving.

In litigation, attorneys are trained to argue their side of the case. The objective is persuasion — of a judge or jury — within a structured, adversarial framework. Mediation, by contrast, is designed to facilitate agreement by identifying shared and competing interests and expanding the range of possible outcomes. This distinction matters.

Hon. Kay M. Hanlon, (Ret.), senior mediator and arbitrator at ADR Systems, encourages attorneys to reframe their approach to mediation by adopting five core practices that will help them become more productive and successful when they mediate a case: preparation, respectful assertion, emotional control, patience and open-mindedness. Together, these practices support interest-based negotiation and increase the likelihood of a durable settlement.

1. Preparation: Understand Both Positions and Interests

Effective mediation begins well before the session itself. Attorneys must be fluent not only in the facts and legal parameters of their case, but also in their client’s underlying interests, priorities and risk tolerance. Mediation preparation should include exploratory, far-reaching discussions with your client about legal and non-legal aspects of the case.

Preparing multiple possible settlement scenarios allows counsel to respond constructively as new information emerges on the day of mediation. Understanding settlement options, including the best alternative to a negotiated agreement (BATNA), provides leverage rooted in informed choice and agility during the negotiation process.

2. Assert Respectfully: Advocacy Without Escalation

Zealous advocacy has a different expression in mediation. Personal attacks, sharp rebuttals or disparaging comments about opposing counsel or prior rulings rarely advance negotiations. In mediation, credibility and professionalism are assets; hostility is not.

Respectful assertion allows attorneys to advocate firmly for their clients while keeping all parties engaged in the process. This approach makes it easier for the mediator to work with your side and supports the mediator’s ability to facilitate productive dialogue leading to settlement.

3. Control Emotions: Composure Is Leverage

Mediation often involves high emotions, particularly when parties feel wronged or unheard. However, emotional outbursts rarely create negotiation advantages. Composure enhances credibility and makes it easier to hear and process the views from the other side — essential to effective problem solving.

Judge Hanlon emphasizes this point: “There is no reason for outbursts or hysteria; no jury is in the box.” Emotional discipline is not merely etiquette; it is a tactical choice that keeps negotiations focused on resolution.

4. Be Patient: Settlement Is Iterative

Mediation is not linear. Movement often occurs through a series of proposals, reframed issues and incremental concessions. Impatience can cause parties to entrench prematurely, closing off opportunities that might emerge with time and dialogue.

Patience allows the process to unfold and gives parties the psychological space to reassess risk, expectations and options. Mediation takes time because there are often many layers to a dispute. Let the mediator work their magic through the caucusing process. Often, during private caucusing discussions with both sides, the mediator will discover new aspects of the case that have not been previously considered.

5. Stay Open-Minded: Expand the Range of Outcomes

Confidence in one’s case is important, but rigidity is counterproductive. The most effective mediation advocates remain open to creative solutions that address underlying interests rather than fixed positions.

As Judge Hanlon notes, “The mediator takes an active role in clarifying process, facilitating fair negotiations, listening to the interests of both sides, proposing reasoned settlement options and encouraging civility by example.” An open mind allows attorneys to use the mediator as a resource rather than viewing them as a quasi-judge.

Mediation Is Not About Winning

Mediation is about managing risk, creating value and crafting outcomes that parties can accept and sustain. When attorneys abandon win-lose assumptions and adopt an interest-based negotiation mindset, mediation shifts from a battlefield to a problem-solving forum.

By preparing comprehensively, asserting interests with respect, regulating emotion, exercising patience and remaining open-minded, attorneys align their advocacy with mediation’s purpose — and significantly improve the odds of settlement.

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Hon. Kay M. Hanlon, (Ret.) has expertise in resolving personal injury actions such as medical malpractice, mass torts and product liability, as well as commercial actions such as legal malpractice, eminent domain and subrogation. As a jurist and neutral, Judge Hanlon is always prepared and ready to listen attentively. Her open and friendly demeanor is known throughout the legal community. Her personality is tailor-made for her work as a mediator and arbitrator.

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