| Read Time: 4 minutes | Business Law
what should you not say during mediation

Mediation is an excellent way to resolve legal business disputes out of court. It is an alternative dispute resolution process in which a mediator acts as a neutral third-party facilitator. The mediator is an impartial party who helps both sides communicate to reach a mutually beneficial agreement.

People often use mediation as a cost- and time-efficient dispute resolution model. Mediation requires that both parties have a level of respect for one another to cooperate to resolve the dispute. 

Unfortunately, not all parties reach settlement agreements in mediation. Business, contract, and other disputes can become heated and emotional.

If the parties cannot agree or become rude, offensive, or uncooperative, they will stall the process. To help you mediate successfully, follow the tips below on what should you not say during mediation. 

Avoid Being Disrespectful

Respect is central to ensuring a successful mediation. The parties must work together to create solutions and make compromises. No one wants to work with someone disrespectful. Rude or disrespectful behavior can make others defensive and unwilling to work with you. You don’t have to be overly nice or friendly. Still, you must respect the other party and the mediator to increase your chances of a successful mediation.

Don’t Lie

Honest and open communication is the bedrock of a successful mediation. Lying in mediation can break the trust between you and the other party. Reaching a fair settlement based on compromise and collaboration is difficult without trust.

If you aren’t sure if you should say something in the mediation, talk with your business attorney first. Don’t lie about it or cover up information you think might harm your case. 

Don’t Make Threats or Ultimatums

You might think it goes without saying but don’t make threats or ultimatums during mediation. Threats to the other party or their attorney can escalate conflict and cause the other party to retract, shut down, or walk out. The goal of mediation is to collaborate openly. It is critical to stay calm and avoid non-confrontational behaviors.

Ultimatums can also prove threatening and cause the other party to be defensive or non-cooperative. Issuing an ultimatum is not cooperative behavior and will decrease your chances of success.

Don’t Refuse to Participate

It is essential to participate actively in the mediation process. You may cut the mediation short if you do something that makes the other side think you refuse to participate. If you are part of a court-ordered mediation and refuse to engage, you could even be in violation of the order. Don’t threaten to walk out or leave. Fully take part in the mediation to increase your chances of success. 

Don’t Use Always or Never Statements

Using “always” or “never” statements is rarely productive in mediation. For example, if you say, “He never helps with the business,” the other party will likely point out all the times he did help. It might also cause unproductive back-and-forth disagreements. You can spend your mediation time more productively by avoiding sweeping statements like always and never.

Don’t Introduce New Evidence or Information

The parties should have all the necessary information to mediate the case before the start of the process. Offering new information or evidence during the mediation that the other party has never seen or heard can significantly impair the ability to settle the case. 

New information can delay the mediation because the other party must review and analyze it before moving forward. Springing new information on the other party late in the game can also make them feel attacked or tricked and cause them not to trust you. They may be curious about what other information you might have withheld. 

This is not to say that new information doesn’t sometimes arise naturally. However, the goal is not to withhold relevant information that could be useful for a successful mediation.

Mediation is confidential, so the information presented will remain confidential. If you are nervous about sharing certain information, discuss it with your attorney so they can assess whether it needs to be part of the mediation.

Don’t Ask for More Money

If a monetary component is involved, the parties will make their demands for compensation before the mediation starts. The parties should come into the process already understanding what the other is asking for and discuss it during mediation.

If you go into the mediation demanding more money than you requested, you will likely halt the process quickly. You might throw the other party off or make them think you are unwilling to mediate amicably. 

If you think your original demand was too low, speak with your attorney. Mediation might not be the right path for your case. 

Don’t Discuss Irrelevant Issues

To keep your mediation on track and efficient, don’t discuss unrelated issues. Raising irrelevant or unrelated issues can distract from the primary goal of the process and make it more challenging to reach an agreement. Going on tangents or discussing unrelated issues can also cause the mediation to take longer and increase expenses. Stay on track and focus on the relevant claims.

Massingill Can Help You Successfully Mediate

Mediation is a helpful way to resolve business and other disputes without going to court. As discussed, the key to a successful mediation is to act respectfully and participate in the process. Our words and actions in the room can impact the outcome of the entire process.

It is imperative to choose our words wisely. While there isn’t a guidebook on mediation’s dos and don’ts, Massingill can help you understand what you should and should not say during mediation.

Our attorneys have helped hundreds of clients prepare for and navigate mediation for various disputes. Work with a business attorney to understand and avoid common mediation pitfalls. Massingill can provide individualized attention to each client as a small law firm.

Our attorneys have extensive experience preparing for and representing clients during mediation. Our firm has received nearly 200 five-star reviews for our superior service. Contact Massingill today to learn how we can help you prepare for mediation.

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Joshua Massingill

Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.

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