Too many lawyers walk into mediation without truly understanding the type of mediator they’re about to work with.
They assume “a mediator is a mediator” and hope for the best.
The problem is: that approach is risky – for you, your client, and the outcome you’re ultimately accountable for.
Before you brief a mediator or recommend one to your client, you should have complete clarity on how they work, how they think, and how they define their role. Not all mediators are equal, and the wrong fit can derail progress, increase costs, and leave clients feeling unheard or unprotected.
Here are three questions every lawyer should ask a mediator before engaging them:
1. How do you keep the process structured?
A skilled mediator will immediately be able to explain how they manage the flow of the session, control the timing, maintain momentum, and protect the focus of the conversation. Structure is not rigidity – it’s the guardrail that keeps discussions purposeful. When mediation lacks structure, it drifts. And drift always costs the client. It costs time, money, and emotional goodwill.
2. How do you define neutrality?
If their answer sounds like, “I just sit back and let things unfold,” that’s a red flag. Neutrality isn’t passive. It doesn’t mean disappearing into the background. True neutrality is active and deliberate: guiding the process without taking sides, reducing heat without suppressing issues, and ensuring both parties are heard without allowing one to dominate. If they equate neutrality with passivity, run.
3. What does success look like to you?
If their definition is limited to “getting a signed agreement, no matter what,” that’s beige thinking at its finest. Mediation is not meant to be rushed or forced into a quick signature. Success isn’t speed – it’s durability. The goal is an outcome that protects the client’s long-term interests, reduces future conflict, and leaves both parties feeling the agreement was fair, not coerced.
Choose your mediator the way you choose your strategy: intentionally. It makes all the difference.
