Mediation Is Not a Side Gig: The Choice of an Experienced Mediator Matters More Than You Think
- Raymond Niblock
- 12 minutes ago
- 4 min read
Why experienced, professionally committed mediators deliver better outcomes than casual neutrals.
By Raymond L. Niblock
Not long ago, I had a conversation with a lawyer on the other side of a case. Good lawyer. Capable. Smart.
At one point, he mentioned, almost in passing, “I’ve mediated once or twice. It was kind of fun.”
There was nothing offensive about the comment. But something was revealing.
It carried an unspoken assumption I have encountered more than once: that mediation is simple and that anyone can do it. That mediation in a civil context is, at its core, mostly little more than moving numbers back and forth until the parties meet in the middle.
That assumption is not just incomplete. It is costly.
The Misconception: Mediation as Message-Carrying
Many lawyers’ experience with mediation, especially early in their careers, looks something like this:
The mediator goes from room to room
Numbers are exchanged
Some pressure is applied
By late afternoon, either the case settles, or it does not
In that model, the mediator functions as a courier. A go-between. A facilitator of arithmetic. And if that is all mediation is, then yes—almost anyone can do it. But that is not mediation at its highest level. Not even close.
What Untrained Mediation Looks Like
When mediation is approached casually or by someone who does not treat it as a disciplined practice, you tend to see predictable patterns:
Little to no pre-mediation preparation
Minimal understanding of the case beyond surface-level facts
No meaningful effort to test assumptions on either side
Overreliance on “splitting the difference”
Frustration when parties do not respond to pressure
In those settings, outcomes are often left to chance or are overlooked altogether. If the numbers happen to align, the case resolves. If they do not, the day is written off as “too early” or “not the right case.” But therein hides another problem: positions will oftentimes harden after a failed mediation.
What a Skilled Mediator Does
A professional mediator—one who is trained, experienced, and committed to the craft—approaches a mediation with a broader vision, informed by thorough preparation, because preparation is foundational.
A skilled mediator comes to the table having:
Studied the pleadings, key records, and damages framework
Identified pressure points on both sides
Considered how each party is likely valuing risk
Developed a strategy for moving the case, not just numbers
In many cases, he has called an interviewed counsel for each party in advance to inquire whether there is anything special about the case or the parties that isn’t in the mediation statement
And once the mediation begins, the work goes far beyond carrying offers.
A good mediator:
Listens deeply
Tests assumptions without alienating counsel
Identifies gaps in information that are blocking resolution
Helps parties realistically evaluate risk—legal, factual, and human
Uses timing, tone, and sequencing deliberately
Knows when to push, when to pause, and when to reframe
This is not mechanical work. It is judgment. And judgment, as every trial lawyer knows, is often earned the hard way by experience.
Mediation as a Discipline
The best mediators do not treat mediation as something they do occasionally. Of necessity, it must become their professional identity, which means:
Constant training and continuing education
Continuous refinement of technique
Thoughtful attention to process
Respect for neutrality as a role—not a slogan
A genuine commitment to helping parties reach a durable resolution
It also means understanding something many litigators intuitively grasp but do not always articulate: Mediation is advocacy—but of a different kind. Not advocacy for one side, but advocacy for resolution.
The Role of Trial Experience
There is no question that trial experience is an asset because a mediator who has tried cases understands:
The way juries think and the genuine possibility of them disregarding jury instructions when making a decision
The actual presentation of evidence in a courtroom
The distinction between theoretical arguments and actual risk
The reality is that skilled lawyers have lost cases they were expected to win, while others have won cases they were expected to lose - highlighting the unpredictability of outcomes
The visible and hidden costs of conducting a trial for those financing it, or the clients who must accept the outcome
That perspective can be invaluable in helping parties evaluate their positions.
All this said, trial experience alone is not enough. Being a good trial lawyer does not automatically make someone a good mediator, just as being a good mediator does not require having tried dozens of cases or even being a lawyer, for that matter.
The difference lies in how seriously the role is taken and in the mediator’s ability to see the issues and listen well enough to guide the parties in becoming the architects of their own solution.
Why This Matters
At the end of the day, mediation is not just about whether a case settles. Much must be considered about how a settlement is reached, at what cost, and at what future cost it avoids.
A skilled mediator can:
Shorten the path to resolution
Reduce unnecessary litigation expense
Help parties avoid the trap of positional entrenchment
Identify the real drivers of settlement or obstacles to resolution
Create outcomes that hold, rather than unravel later
Address an impasse that seems impossible - by keeping the parties talking
The Quiet Truth
Most lawyers prepare meticulously for trial. They master the facts. Refine their arguments. Anticipate weaknesses. Develop a strategy.
Mediation requires the same level of seriousness.
And so does the choice of mediator.
Because when mediation is done well, it is not a detour from the litigation process. It is one of the most powerful tools within it.
Final Thought
There is nothing wrong with being new to mediation. Everyone starts somewhere. But there is a difference between trying mediation and committing to it as a profession.
Litigants and counsel who recognize that difference and choose their mediator accordingly give themselves a measurable advantage.
Not just in reaching a settlement.
But in reaching the right one.
If you are considering mediation, thoughtful preparation—and the right neutral—can make all the difference.
“If you are considering mediation, I am always available to discuss whether the case is ready and how to approach it.”