Mediation has a reputation problem it does not deserve. Parties often arrive assuming it is a formality before arbitration proper begins — a box to tick, or a chance to test the other side’s resolve before the real fight starts. In practice, most mediations that are properly prepared and properly timed end in settlement, and the reasons for that have less to do with pressure in the room than with what happens well before the parties sit down.
That gap between reputation and outcome is worth taking seriously, because it changes how parties should approach the process. Treating a mediation as a formality wastes an opportunity; treating it as a genuine chance to resolve the dispute on the parties’ own terms, rather than a tribunal’s, changes how much preparation goes into the day — and how likely that day is to work.
Preparation is the real work
A mediation day is short. What determines whether it succeeds is largely decided in the weeks before it, in how each side has prepared its own position and, just as importantly, how well it understands the other side’s. Parties who arrive having only rehearsed their own arguments tend to spend the morning restating them, which wastes the narrow window in which movement is actually possible.
- A realistic view of the likely range of outcomes if the dispute proceeds to a hearing, including time and cost.
- Clear authority in the room to move, rather than a representative who must call back to a decision-maker after every session.
- An honest internal assessment of which issues are principled and which are, on reflection, negotiable.
Good mediators spend as much time on this preparation with the parties as they do in the joint and private sessions on the day itself. A mediation that has been properly set up rarely fails for lack of goodwill; it fails, when it fails, because one side has not done the preparation that would let it recognise a reasonable outcome when it is offered one.
Parties rarely settle because they are persuaded they are wrong. They settle because they are shown, clearly, what continuing to disagree will actually cost them.
Ayesha Sultan
The moment positions become outcomes
Every mediation reaches a point where the conversation shifts from positions to outcomes — from what each side believes it is entitled to, to what each side is actually prepared to accept. That shift does not happen automatically, and it rarely happens in the joint session. It happens in private sessions, through careful reality-testing that respects a party’s position while gently separating it from the commercial consequence of holding onto it too long.
This is where experience across different types of commercial dispute — construction, real estate, technology, employment — matters. Each sector has its own conventions about what a “reasonable” settlement looks like, and a mediator who recognises those conventions can move a conversation forward faster than one working from general principle alone.
That control is, for many parties, the real attraction of mediation once they experience it. An arbitral award is imposed; a mediated settlement is agreed. Parties who might resent an outcome decided for them will often accept, and keep to, a very similar outcome they helped design themselves.
Patience as a discipline
The temptation, for a mediator, is to push too early for a number. Patience is the harder and more useful discipline: letting a party arrive at its own reassessment of risk, rather than being told what to think of its case. Pushed too soon, parties dig in. Given the right amount of time and the right questions, most find their own way to a number that makes commercial sense.
That is why, across a wide range of commercial and employment disputes, most mediations that are properly prepared and given the space they need end in settlement — not because either side has been defeated, but because both have been shown, clearly enough, what the alternative would actually cost.
