A surprising number of mediations stall not because the dispute was unsolvable, but because one side made an avoidable mistake that poisoned the negotiation. The facts may have supported a deal, the money may have been there, and the parties may have genuinely wanted to resolve the case. What got in the way was how they approached the room. The good news is that the most common mistakes are predictable, which means they’re also preventable.
Treating the First Number as the Final Number
Opening offers in mediation are starting points, not statements of resolve. Parties who anchor emotionally to the other side’s first number, reading it as an insult or as proof of bad faith, tend to disengage before the real negotiation begins. The first exchange is meant to establish range. The case settles in the rounds that follow.
Experienced litigators expect aggressive openings and don’t take them personally. They watch the trajectory of the movement, not the starting point, and they let the mediator do the work of closing the gap over the course of the day.
Negotiating Against Yourself
The opposite error is just as damaging: making large, unilateral concessions out of impatience or anxiety to settle. When a party drops their number significantly without getting movement in return, they teach the other side to wait them out. The other side reasonably concludes that more concessions are coming if they simply hold firm.
Good negotiation in mediation is reciprocal. Movement should be met with movement. A mediator helps manage that exchange, but a party who keeps bidding against themselves undermines their own position and often ends up worse off than if they’d been patient.
Confusing Being Right with Getting Resolution
Mediation is not the forum to win the legal argument. Parties who spend the day trying to prove they would prevail at trial, relitigating every contested fact, usually find the negotiation going nowhere. Being right and getting a resolution that serves your client are different goals, and the day is built for the second one.
This is where the human side of the dispute matters. The most durable settlements come from addressing what each side actually needs to move on, not from establishing who had the stronger case. A party fixated on vindication often misses the deal that would have served their client best.
Underestimating the Other Side’s Constraints
Every party comes to mediation with pressures the other side can’t fully see: a board that has to approve a number, a financing event on the horizon, a budget that won’t stretch, a principal who cares about something the complaint never mentioned. Parties who assume the other side is simply being difficult, rather than working within real constraints, miss opportunities to structure a deal that works for everyone.
A mediator with litigation and arbitration experience spends much of the day surfacing exactly these constraints. The parties who listen to what’s actually driving the other side, instead of assuming bad faith, are the ones who find creative paths to resolution.
Letting Sunk Costs Drive the Decision
By the time many disputes reach mediation, both sides have already spent considerable money and energy. The pull to “see it through” so that the investment wasn’t wasted is powerful, and it’s a trap. Money already spent is gone regardless of what happens next. The only question that matters is whether the offer on the table beats the financial, emotional, and time costs of continuing.
Letting sunk costs dictate the decision leads parties to reject reasonable settlements in pursuit of recouping expenses that a verdict or arbitration award may never return. Evaluating any offer against the real cost of the alternative, not against what’s already been spent, is the clearer-headed path.
Giving Up at the First Impasse
Almost every mediation hits a point where the gap looks unbridgeable and the day feels stuck. Parties who treat that moment as the end, packing up and declaring failure, walk away from deals that were closer than they appeared. The afternoon stall is a normal feature of the process, not a verdict on whether the case can settle.
The most productive parties push through the impasse with the mediator’s help, knowing that some of the best resolutions come in the final stretch, after both sides have tested every assumption and confronted the real cost of walking away.
Chris Vernon has spent decades litigating and arbitrating complex disputes, and he brings that firsthand perspective, built across courtrooms, arbitration hearings, and high-stakes negotiations, to every mediation he conducts. He helps parties avoid the traps that derail negotiations and stay focused on a resolution both sides can move forward from.
If you have a case that could benefit from mediation, you can learn more about our approach and view Chris’s availability here.