Updated January 2023
In recent years, there's been a major shift away from traditional litigation toward alternative dispute resolution (ADR) techniques such as mediation.
Mediation is generally less costly, stressful, and time-consuming than litigation—and offers a much higher degree of flexibility and personalization for clients.
However, in order to be effective, mediation must be a carefully structured, expertly led exercise. Lose control of the process, and negotiations will quickly devolve into chaos.
Formal mediation training teaches aspiring mediators a wide range of techniques they can use to resolve disputes. But even the most successful students and professional mediators occasionally fall into traps.
From losing neutrality to failing to contain and redirect destructive behaviours—these are five of the most common pitfalls you'll face as a mediator.
1. Not properly preparing your client for the mediation process
Mediations go better when clients are prepared, focused, and calm. Key to this goal is ensuring your clients know what to expect from the process and the role they'll play at the negotiation table.
Mediators are so familiar with the steps involved that they sometimes forget that this experience is usually quite foreign to participants. Be sure to walk them through each stage, explain your expectations, and outline the goals you hope to achieve together. This will go a long way to minimizing surprises—and anxiety—during mediation.
2. Not knowing when to call break time
One of the key precepts taught in mediation training is how to remain impartial and (at least seemingly) objective as both sides tell their stories and lay out their demands.
Mediators hone this "detachment" skill through their careers and use a variety of techniques to maintain composure and conserve energy during strenuous and lengthy negotiations.
Clients, on the other hand, have no such toolkit. They haven't undergone training or had extensive experience in controlling their emotions, and it's highly likely they will, at some point, feel frustrated and exhausted during mediation.
Knowing when to call break time, or close a mediation session for the day, is a crucial skill some mediators lack. Wanting to push forward toward a resolution, they fail to recognize that the meeting is no longer productive—and clients desperately need a chance to regroup and recharge.
A break at the right time can make all the difference.
3. Not uncovering the true root of the dispute
The issues your clients bring into mediation are rarely the full story behind the dispute. In many cases, the points raised at the outset merely scratch the surface of some more deeply rooted and painful problem.
It's the mediator's job to drill down and get to the true source of the conflict. What is really behind the workplace dispute? What is actually stalling a deadlocked divorce negotiation?
Taking complaints at face value, and failing to dig deeper into motivations, can make for a very frustrating mediation process. If you don't uncover the underlying cause of the dispute, how will you successfully bring both parties to a mutually agreeable outcome?
4. Letting your personal opinions or criticisms shine through
It can be extremely challenging to keep your personal opinions hidden while hearing clients' versions of events and witnessing certain behaviours during mediation.
Mediators are human and cannot be expected to remain one hundred per cent "neutral" during negotiation. However, allowing any kind of judgment or criticism to shine through can seriously jeopardize the trust of your clients.
Above all else, both parties must believe you are impartial and fair throughout the entire process. Everything depends on this belief.
Maintaining neutrality means being aware of, and carefully controlling, both verbal and non-verbal communication. This includes:
☑️ Listening with equal care and attention to all parties as they tell their version of events and suggest resolutions
☑️ Ensuring body language is neutral and consistent toward each participant
☑️ Reminding parties of their legal obligations, and the goals of mediation, but never voicing any personal opinions, attempting to "reform" their worldview, or criticising their behaviors
☑️ Resisting the urge to impose your own solutions for the conflict and instead allowing parties to develop and reach common ground on their own (you are the facilitator, not the judge)
5. Forgetting to set ground rules for the mediation
Professional mediators often take for granted that parties understand the rules of engagement. They assume their clients know that mediation involves negotiation toward outcomes that, ideally, satisfy everyone involved.
There is an assumption that once parties agree to mediation, they also agree to act with respect, patience, and cooperation. Obviously, it's a big mistake to assume your clients all have the same idea of what a "cooperative" process looks like.
Many mediation clients feel combative, defensive, and ready for war. It's your job to outline the ground rules right from day one to ensure they enter mediation with a productive mindset. Be very clear about what will, and will not, be tolerated.
For example, you'll want to emphasize that abusive language (name-calling, profanity, yelling, etc.) will not be tolerated, and that you will actively subvert blaming and recriminations—because these behaviours will undermine the entire process for everyone.
There are several reasons why setting grounds rules is key for effective dispute resolution:
☑️ Clients must acknowledge and agree to the rules from the outset, which helps set the stage for a smoother negotiation by establishing accountability.
☑️ Both parties feel safer, knowing aggression will not be accepted.
☑️ It will be easier to intervene when discussions veer off track due to anger and confrontational behavior (you can simply refer to the "rules" everyone agreed to at the outset to diffuse the situation).
☑️ Outlining rules reinforces your leadership and competence as a mediator, which in turn helps foster trust.
If there's one thing we can conclude from these common mediator traps, it's that dispute resolution is an extremely complex process, full of nuance and subtlety.
Not only must you master the legal and procedural elements of mediation, you must also be prepared to manage and direct highly charged human emotions (including your own) to keep negotiations on track.
Mediators are constantly fine-tuning their approach. Success in this role demands a high level of self-awareness and reflection—and a commitment to continual professional development.
Learn more about mediation and dispute resolution training
Are you interested in becoming a mediator and need an accredited training program to develop your skills?
Explore the Mediation and Dispute Resolution Certificate offered by Kompass Professional Development.
This online mediation course is accredited by the ADR Institute and fulfills the education requirement to earn the Qualified Mediator (Q.Med) Designation.