23 Jul Four Mediation Myths That Can Get in the Way of Resolution
Mediation is shaped by myths and assumptions about what settlement can accomplish, how quickly people can change their positions, what certain negotiating positions mean, and how parties should begin the bargaining process.
Many of these beliefs contain an element of truth. But when they are treated as universal rules, they can make resolution more difficult.
In this blog post, Logan Cooper examines four common mediation myths and considers how preparation, communication, realistic expectations, and an understanding of the people behind the positions can create a more productive process.
Mediation Myth #1: “Settlement Solves Everything”
Settlement brings certainty and closure, which has enormous value. But settlement does not turn back time, restore health, or undo years of stress, uncertainty, and all of the other “joys” of litigation.
For some people, a lawsuit gradually becomes intertwined with their sense of identity.
That is true for parties. For plaintiffs, the case can become part of how they understand what happened to them and how they explain their experience to others. It can also be true for the professionals involved. Over time, a case can become framed around winning or losing, being vindicated or being proven wrong, paying too much or accepting too little.
When a case settles, there can be relief. But there can also be disappointment, frustration, or grief.
For plaintiff counsel, part of the challenge is helping clients understand that moving forward may require accepting a reality that looks very different from the life that existed before the dispute arose.
For defence counsel and insurers, settlement may involve recommending or agreeing to payment in a case they believe is defensible, uncertain, or overvalued.
This doesn’t mean settlement isn’t worthwhile. But it does require an acknowledgment that resolution is often not the end of a journey, but rather the beginning of a new chapter.
When negotiations at mediation become all about the numbers, it’s important to remember that people are actually making decisions about what comes next.
Mediation Myth #2: “People Can Make Adjustments on the Fly”
There is a misconception about how flexible people can be at mediation.
In reality, flexibility often depends on preparation. Parties need to set themselves up for success and help their negotiation partner do the same.
For insurers, meaningful flexibility often depends on authority being secured in advance of the mediation. Even if an adjuster and defence lawyer learn something new that changes their view of the case, their hands may be tied. The days of simply “making a phone call” for additional authority are often a thing of the past.
For plaintiff counsel, flexibility can be just as challenging. Expectations are not formed overnight. They develop over months or years through litigation, conversations with counsel, and lived experience. Adjusting those expectations in a single mediation session can be difficult, even with the assistance of counsel and the mediator.
So how do you improve flexibility at mediation?
Don’t deliver important information at the last minute.
Whether it is a report, surveillance, treatment records, or another significant development, information delivered 24–48 hours before mediation (or worse, during the mediation itself) rarely has the impact people hope it will. Give people a chance to prepare.
Flexibility at mediation is not just about willingness. It is often about whether the people at the table have been given enough time, information, and authority to move.
Mediation Myth #3: “When an Insurer Comes with $0.00, They Aren’t Serious About Settling the Case”
Not necessarily.
Sometimes a $0 position is a negotiation tactic. The mediation is viewed as an opportunity to test arguments, gather information, or better understand how a plaintiff may present as a witness.
And sometimes a $0 position is not a tactic at all. After applying the facts to the law, the insurer’s risk analysis genuinely produces a zero (or close to zero).
Plaintiff counsel often express disappointment that they did not receive a courtesy call before the mediation. That’s understandable.
A mediation can get off to a rocky start when one side arrives expecting a negotiation and learns that the other side currently sees no exposure.
For defence counsel, this is not an easy message to deliver in advance of the mediation, but where possible, it can be helpful to communicate that although there will be no monetary offers, there is a willingness to listen for new information, perspectives, or risks that may have been overlooked.
For plaintiff counsel, this can be a frustrating position to encounter. It can also be an opportunity to explain why the defence’s assessment may be incomplete and why the case carries more risk than they currently appreciate.
Sometimes, two sophisticated parties evaluate the exact same case and reach completely different conclusions. Sometimes a mediation ends with views unchanged. Sometimes it becomes the first step toward closing the gap.
Mediation Myth #4: “I Have to Start High (or Low) to Manage Expectations”
Fair thought. But not always. An extreme opening position can create more problems than it solves.
First, you run the risk of losing credibility. It becomes difficult to persuade someone that your assessment of the case is reasonable when your opening position appears disconnected from reality.
Second, we’re wired to react. An extreme offer often invites an extreme response. Before long, the discussion becomes focused on ranges that were never going to settle the case in the first place.
Third, you risk losing people. Some parties are willing to work past an extreme opening position. Others are flight risks. A mediator will do their best to keep everyone engaged, but there is no guarantee that a negotiation will recover from a particularly rocky start.
Finally, people become attached to movement. One of the most common comments at mediation is: “Look how far we’ve moved!”
Plaintiffs say it. Plaintiff lawyers say it. Defence lawyers say it. Insurance professionals say it.
There are negotiations where the parties moved enormous distances but never came close to settling because they spent too much time discussing numbers that were never realistic.
The goal isn’t to maximize movement. The goal is to maximize the chances of resolution.
Conclusion
Taken together, these myths reveal that successful mediation is rarely about following a fixed formula.
Settlement does not erase what came before it. Flexibility cannot always be created in the room. A firm position does not necessarily mean a party is unwilling to engage. And dramatic movement does not necessarily bring the parties closer to resolution.
Productive mediation requires preparation, clear communication, realistic positioning, and an appreciation of the practical and human considerations influencing every decision.
The better we understand those considerations, the better equipped we are to use mediation not simply as a day of negotiation, but as a meaningful opportunity to narrow differences, reassess risk, and help parties determine what comes next.
About the Author
Logan Cooper joined the Cooper Mediation team in November 2017 and devotes 100% of her professional time to mediating at roster-like rates. She has mediated over 600 cases in the areas of personal injury, long-term disability, employment, and other insurance-related disputes. She has handled global mediations, cases with multiple parties, self-represented litigants and cases with complicated technical and interpersonal challenges. Logan has been inducted into the International Academy of Mediators (IAM). The IAM is an invitation-only organization.
Logan can be reached at logan@coopermediation.ca or (416) 726-1344.
To schedule a mediation with Logan, visit: Logan Cooper’s online calendar.