I recently mediated a contract dispute between two executives of a family-owned business. During pre-mediation ex parte calls, it became clear that the parties’ expectations were wildly misaligned. Each believed the other was acting in bad faith, and their lawyers were preparing them for a prolonged fight.
In closely held or family-owned businesses, disputes like this often carry personal history and questions of control and respect. Those dynamics can drive expectations far beyond the contract terms, which is why they need to be managed at the beginning of the mediation.
Yet I was confident a settlement could be reached, provided expectations were addressed early. To set the stage, I scheduled early calls with counsel to build trust and set expectations about what would happen in the room: emotions would run high, clients would resist compromise, and both sides would need to hear hard truths about risk.
In those calls, I told counsel that they and their clients must understand and accept that mediation is not about vindication. In this case, I asked counsel to prepare their clients for this reality and said I would repeat this mantra during the mediation.
I customarily begin mediations with a joint session and opening statements. But in this case, I determined that an initial joint session would likely exacerbate tensions rather than advance resolution.
I therefore chose to begin in caucus, allowing each party to express frustrations candidly, while permitting me to listen and evaluate the dispute without the pressure of public positioning. This approach helped the parties contain emotions and prevent early statements from hardening expectations.
After several hours, I decided to bring them together in a joint session. By that time, emotions were mostly contained, and both sides were ready to speak more constructively. The joint session allowed me to correct misperceptions, frame compromise as strength, and ultimately, helped the parties reach a settlement that resolved the dispute and allowed them to move on.
This example illustrates why managing expectations is central to effective mediation. When clients enter mediation expecting validation, vindication, or a decisive “win,” rather than a disciplined assessment of risk, tradeoffs, and future outcomes, they are far more likely to become entrenched, dismiss serious offers, and misread compromise as failure.
In those circumstances, even well-prepared cases and skilled advocacy can stall, not because resolution is unavailable, but because expectations are misaligned with what mediation is designed to deliver.
This places expectation management at the core of the mediation process. Anticipating and addressing unrealistic or counterproductive expectations deliberately and early not only protects the legitimacy of the mediation, but it also preserves momentum, maintains counsel credibility, and maximizes the opportunity for resolution.
Expectation Management in Practice
In mediation, where emotions and trust often outweigh legal arguments, a mediator’s role is not to force settlement, but to help parties see reality more clearly, adjust expectations accordingly, and increase the odds of a realistic resolution.
Without expectation management, clients mistake compromise for weakness. To settle, of course, requires each side to obtain enough benefit to justify concessions. Yet many clients fear that giving anything means admitting they were wrong, which discourages realistic give-and-take.
Clients sometimes say it plainly: “If I move from my position, it looks like I am admitting my case is weak.” This type of emotional investment hinders compromise. When parties expect that mediation is meant to prove they are “right,” they are less able to objectively evaluate proposals.
Expectation management must address those emotions directly; otherwise, disputes are more likely to drift into prolonged, costly litigation. Proactive expectation management is the key to helping parties settle more quickly, saving time, money, and emotional distraction.
Ex Parte Pre-Mediation Calls with Counsel
Expectation management begins with the initial conference involving all counsel, but it is during ex parte calls with counsel that the mediator can most effectively shape the course of the mediation. These conversations set the tone for how counsel prepare their clients for negotiation, including what realistic progress looks like and how a workable settlement may differ from a client’s opening narrative.
Ex parte calls give the mediator insight into how counsel view the case, such as its strengths, weaknesses, and risks, as well as what their clients expect from the process. Those discussions often surface unrealistic assumptions or emotional drivers that, if left unaddressed, can derail negotiation.
During these calls, mediators should ask direct questions about the clients themselves: how emotionally invested they are, whether they tend toward confrontation, and how they are most likely to receive difficult information. I encourage lawyers to prepare clients for negotiation, to anticipate emotional reactions, and to understand that settlement is not synonymous with surrender.
These conversations also help me build rapport with counsel while making clear that expectation management is a core element of effective advocacy. I also caution counsel that clients may misinterpret any recommendation to settle as a loss of loyalty or abandonment. For that reason, I make it clear that I will reinforce this message directly with the clients. I tell them that when counsel advises settlement, they are acting in the client’s best interests, often at the expense of the lawyer’s own fees, and that such advice reflects professionalism, not weakness.
Joint Session Openings
Joint sessions can exacerbate conflict unless the mediator firmly establishes a tone of professionalism and civility and ensures that both parties feel heard.
When managed effectively, however, joint sessions serve an important purpose: they allow each side to hear the other’s narrative directly, presented by counsel in an advocacy setting. For many clients, this is the first time they have heard the opposing case in full, which often corrects misperceptions and makes expectations more realistic.
A well-run joint session also helps recalibrate expectations about the mediation process toward a practical assessment of risk and achievable outcomes. The joint session also gives the mediator an opportunity to establish ground rules, explain the structure of the mediation, and set clear expectations for conduct and decision-making.
In my practice, I emphasize that mediation is voluntary, that no party is forced to settle, and that meaningful progress requires flexibility and an open mind. I also frame mediation as a time-limited process. Establishing temporal boundaries discourages posturing by making delay costly and signaling that progress depends on timely, informed decisions.
Facilitative and Evaluative Techniques
Facilitative mediation focuses on helping parties communicate, explore interests, and generate options, while evaluative mediation allows the mediator to offer limited assessments of risk and likely outcomes. In practice, effective mediation often requires movement between these approaches rather than strict adherence to one model.
I typically begin by using facilitative techniques to improve communication and encourage parties to generate options. When negotiations stall because parties are overconfident or anchored to unrealistic assumptions, I have found that carefully calibrated evaluative input can help reset expectations without undermining neutrality.
Evaluative input depends on rapport and credibility with both counsel and clients. One approach I use is to ask counsel to test an overconfident position against the practical risks of proof at trial. Framing the discussion this way allows clients to assess their positions realistically, while preserving the mediator’s role as a neutral facilitator.
Reframing Compromise as Strength
A persistent challenge in mediation is not disagreement over facts or law, but the expectations parties bring into the room. When parties arrive expecting a definitive declaration of right and wrong, mediation is asked to perform a function for which it was never designed, which has implications beyond any single case.
Mediation now occupies a central role in civil dispute resolution precisely because it is expected to conserve judicial resources, reduce costs, and deliver timely outcomes. In that sense, when expectations are not addressed early, mediations break down, and parties go back to litigation, driving up costs for clients, adding to already crowded court dockets, and delaying resolution.
For mediators and counsel, this places a premium on deliberate front-end work. Expectation management is about ensuring that parties not only understand what mediation can and cannot provide, but also see it as a smart and often more beneficial alternative to litigation.
