Why Most Mediations Fail Before They Begin

Mediation has become a standard feature of civil litigation in Colorado and across the country. Courts encourage it. Insurance carriers require it. Bar associations endorse it. And yet, many mediation sessions end without a settlement — not because the gap between the parties was unbridgeable, but because counsel arrived unprepared to close it. After years of mediating civil disputes, I have come to believe that the single greatest predictor of settlement success is what happens in the weeks before the parties ever sit down together. The mediation session itself is, in many respects, the least important part of the process. The Mediation Statement Is Not a Formality Many attorneys treat the pre-mediation statement as an administrative task — something to complete the night before the session, summarizing the basic facts and stating the last settlement demand. This is a missed opportunity. A well-constructed mediation statement does several things. It educates the mediator on the factual and legal landscape so that no time is wasted on orientation. It identifies the interests underlying the party's stated positions. And, perhaps most importantly, it signals to opposing counsel that your client is taking the process seriously. I encourage counsel to include in their statements: a candid assessment of their client's litigation risk, the key liability and damages issues that remain contested, and the parameters within which they have authority to settle. That last point is more valuable than it might seem. A mediator who understands your authority range can structure the session productively from the first hour rather than spending the day probing for information that could have been shared in advance.