When Lawyers Litigate the Mediation Room
Let’s be honest. Most attorneys are invaluable partners in the mediation process. They prepare their clients, clarify the issues, and help reality-check expectations.
But sometimes — not always, but sometimes — an attorney walks into mediation and forgets where they are.
Suddenly, the room feels less like a collaborative process and more like a courtroom audition. They cross-examine. They posture. They argue precedent. And just like that, the spirit of mediation disappears under the weight of litigation energy.
Mediation Is Not Litigation
This should go without saying, but it’s worth repeating: mediation isn’t about winning. It’s about understanding.
It’s not a deposition. It’s a dialogue.
The mediator isn’t a judge. They’re a facilitator.
When lawyers treat mediation like trial prep, they unintentionally pull their clients backward, away from agency and toward dependency. They shift the focus from resolution to performance. And in doing so, they miss the point entirely.
The Cost of Over-Lawyering
When attorneys dominate the process, three things happen:
The client loses their voice. They become a spectator in their own conflict.
The atmosphere tightens. Emotion spikes; empathy disappears.
The process stalls. Creativity, which mediation relies on, quietly dies.
The result? Clients leave saying, “That felt just like court, only shorter.”
And if we’re being real, nobody hires a mediator because they want a shorter version of court.
The Better Role for Counsel
The best attorneys know how to pivot. They understand that mediation isn’t about making the most persuasive argument. It’s about helping their client make the most informed choice.
That means:
Preparing clients to tell their own story.
Offering advice privately, not performing publicly.
Supporting calm, not competition.
Knowing when to pause, listen, and let the process breathe.
When attorneys do this well, they elevate mediation. They make it safer, smarter, and infinitely more productive.
A Note to Mediators
Set the tone early. Define the space and expectations before the opening statements start sounding like closing arguments.
You can say, calmly and clearly:
“This isn’t a courtroom, and I won’t referee a debate. My role is to help you explore what’s possible, not to decide who’s right.”
Then hold that line. HOLD. IT.
If counsel keeps slipping into litigation mode, intervene with grace but firmness.
Reaffirm the process.
Sometimes the most effective redirect is a quiet one: “Let’s bring this back to solutions.”
Boundaries are not barriers; they’re structure. And mediation thrives on structure.
A Note to Clients
If your attorney treats mediation like a fight, you have permission to ask for something different.
You can say:
“Help me understand the options, not just the arguments.”
“I want to be part of the discussion, not just watch it happen.”
“Can we focus on resolution, not winning?”
You’re not in contempt for wanting collaboration. You’re exercising your right to shape the outcome.
Final Thought
Mediation works best when everyone in the room remembers what it’s for.
The courtroom has its place, and so does the collaborative table.
When lawyers bring curiosity instead of combat, mediation becomes what it’s meant to be: A place where people can think differently, not just argue differently.
The goal isn’t victory. It’s resolution.
And that takes a rare kind of advocacy. The kind that knows when to stop talking and start listening.