Why Some Lawyers Resist Mediation
Resistance stems from incentives (billable hours), habit (litigation training), and perceptions (mediation as ‘soft’). Some worry about revealing strategy or signaling weakness.
Lawyers may resist mediation for several reasons rooted in both strategic concerns and professional culture. Some believe mediation signals weakness or undermines their client’s bargaining position, especially when litigation is viewed as a more assertive or traditional approach. Others may fear that mediation limits their control over the process or exposes weaknesses in their case that could be exploited later if settlement is not achieved. Additionally, lawyers accustomed to adversarial proceedings might be unfamiliar with collaborative problem-solving or skeptical of its effectiveness. To address this resistance, mediators can emphasize confidentiality, clarify the voluntary nature of mediation, and highlight successful outcomes. Building trust with counsel and involving them in process design often increases buy-in and improves the likelihood of a constructive mediation experience.
Address resistance by demonstrating client value—faster outcomes, preserved relationships, and strategic clarity. Incorporate mediation into litigation strategy rather than treat it as capitulation.
