There’s plenty to say about a mediator’s mentality, but there is one in particular that I hear over and over from parties — simply put, they wish their mediator had not given up so easily.

In one way mediation is a test of “wills”, with the mediators “will” sometimes being the most important.  Mediators should be mindful that but for some sort of standoff, mediation would not be necessary.  The parties have tried to settle their issues and couldn’t, and to get past their barrier it may take a mediator willing to go where the parties haven’t gone.

This is not to say every case can be solved in mediation.  There may be pending dispositive motions that need to be ruled on, discovery may be incomplete, or the parties think they can just do better in court.  But no matter what the barrier or perceived barrier, it’s the mediator’s role to address all possible options.

Oftentimes mediators believe they did what they could when they could have done more.  Did they seek solutions from the parties and tried previously successful ideas?  Did they try “unconventional” approaches and think out-of-the-box?  Some of these solutions come with experience, but no matter what level of experience you have as a mediator, persistence can still be one of your greatest allies.