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Common mistakes in mediation

While mediation has grown exponentially within the last decade, new challenges have also arisen in the practice area. Here, one award-winning mediator reflects on the most common mistakes he sees and how to fix them.

user iconLauren Croft 11 January 2024 SME Law
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Steve Lancken is the managing director of Negocio Resolutions and the winner of the Arbitrator Mediator of the Year category at the 2023 Australian Law Awards.

Speaking on a recent episode of The Lawyers Weekly Show, he revealed some of the key do’s and don’ts when it comes to mediation, which is currently a huge area of growth.

Mediation has evolved greatly over the last 25 years – but with growth also comes mistakes, some of which make mediation more difficult.


“The behaviour that makes things most difficult is where lawyers want to conduct themselves as if they’re in a courtroom. That means they see themselves in a contest, like an arm wrestler, and they’re trying to convince the other side that they’re wrong. Why is that problematic? Because in 25 years of doing this, I have never, ever seen a barrister or a solicitor, no matter how experienced, be so skilful in telling the other side that they’re wrong, that the other side put the hand up and said, ‘oh, we’re completely wrong. How much money do you want?’” Mr Lancken outlined.

“It doesn’t happen because by the time people get to mediation, they’ve been involved in a conflict for some time and they’re usually fairly invested in their narrative or their truth. Now, that’s not to say there’s not a place for having a robust conversation about the merits of a case. I think that’s really important to have that conversation because it helps the lawyers and their clients understand risk. But once we get past the stage of understanding risk and we’re trying to convince somebody else or the media that we’re right, we’re wasting our time.”

In addition to trying to convince the other side they are wrong, Mr Lancken added that getting parties past that stage into more of a resolution mindset can also be tricky.

“And it is sometimes the hardest piece of the work to get people to move to the next place, which is, OK, we understand the two sides of this now. What are we going to do to sort it out? What are the ideas we can come up with that will create a future that we can live with? The other thing that lawyers sometimes do that causes me a little bit of concern is they speak to their clients about ‘having to compromise’. And while compromise is a good thing where there are intractable problems, it’s not the be-all and end-all of mediation,” he said.

“And so that’s problematic when we use that sort of language. I like to talk about collaboration rather than compromise. How can we work together to find an outcome that maximises the return for us and minimises the cost? And so, we can substitute that sort of conversation for the conversation of compromise.”

Therefore, mediators should be utilising specific language in order to steer their clients in the right direction and put them in the right frame of mind, according to Mr Lancken.

“It’s important that clients recognise that their lawyer is there to support them, to try and help them get the best outcome, not to give in, not to compromise, but to work to find solutions that make sense for that client. And that can be easier if lawyers can help prior to or during a mediation. Clients understand, well, what does not resolving this matter look like? What’s the alternative? And help their clients understand the risks, the upsides and the downsides of litigation,” he added.

“Because ultimately, if there’s an offer or a deal on the table, the client’s got to weigh up and choose between the outcome that’s been negotiated in the mediation and, for instance, taking their case to court. And they can’t make that decision unless they understand clearly and honestly the risks and opportunities of taking that case to court.”

Taking cases to court also has to happen in certain circumstances, Mr Lancken emphasised.

“I think the biggest pitfall is mediators thinking that every case can be resolved and every case should be resolved. There are cases that need to be determined by our courts. There are cases that are so intractable that [they] are never going to be resolved. I’m invested in people exploring settlement as much as they possibly can and being robust in deciding what they’re going to do. But if I’m invested in a resolution, it’s a pitfall for a mediator because I may well then be talking people into bad outcomes, and I don’t want to do that,” he said.

“And similarly, investment of lawyers in the righteousness of their case, or the righteousness of their argument. One of the things we need to take into a mediation room, or give away when we go into a mediation room, is our investment in what’s happened in the past and instead focus our energy for that short period of time. We usually only spend half a day or a day, sometimes a bit longer, on this, but we invest our energy at that time in finding something for the future rather than whatever we’ve got invested in what happened in the past.”

In light of these pitfalls, integrity and independence should absolutely be non-negotiables for mediators, in addition to being able to “listen without agreeing”.

“One of the most important things I recognised when I first stopped being a lawyer and became a full-time mediator was that I had to be completely independent, and my integrity had to be beyond doubt. That’s the reason why people choose retired judges as mediators, because they’ve already passed that test. Then probably the most important skill is the skill of listening. It’s the hardest for people to master, and people are afraid of listening deeply to the other protagonist because they think if they listen to somebody and they express understanding, that means that they agree,” Mr Lancken explained.

“And I think the greatest skill I’ve developed over the last 25 years is learning how to listen without agreeing with somebody. I can hear and understand all sorts of arguments, even if I don’t agree with them, and I can articulate or explain them to others so that they can understand them again; they don’t have to agree with them. It is important, though, in any conflict, that we understand the arguments of the other side, firstly, because it lowers the temperature in the room.

“After that, patience comes a close third. There is no quick answer to difficult conflict and difficult disputes. And we need to take our time. If we rush through the conversations, we don’t understand the complexity, we don’t understand what’s important, and we don’t understand where the solutions lie.”

NB: This transcript has been edited slightly for publishing purposes. You can listen to the full episode here:

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