In the KCBA Bar Bulletin’s December issue, Eric Gillett offers practical tools for supporting productive movement in mediation.
Every mediator has seen it: attorneys arrive at the table armed with firm positions, often drawn like battle lines. These stances can serve a purpose signaling strength to clients and opposing counsel but they can also become barriers to resolution. When circumstances shift or new information emerges, those hard positions can feel like shackles that bind us to unreasonable positions. How do we as mediators help attorneys pivot without undermining their credibility or making them look weak, both to their clients and to opposing counsel?
The answer lies in creating a safe path for flexibility, one that frames movement as strategic, professional, and client-focused. Below are several proven strategies mediators can use to help attorneys walk back hard positions while preserving dignity and momentum toward settlement.
As a young defense attorney, I remember advising clients on the settlement value of a case, then concluding later that I believed the settlement value had increased. With only a couple of years of experience under my belt, I felt uncomfortable suggesting that my earlier evaluation was wrong. I worried that the client would lose faith in my ability to defend them. Worse, I worried they would think I was simply looking for a way to avoid trying the case.
I imagine that many lawyers find themselves in the same position for a variety of reasons. These reasons may include an inadequate early evaluation. But more often than not, it is because more information has come to light and the circumstances supporting that earlier evaluation have changed. Regardless, it is important to communicate to attorneys at a mediation that changing course is not a sign of weakness; it is a sign of responsiveness. Attorneys often fear that movement will look like surrender or capitulation. But if we help them to reframe their position in response to new information, it becomes a natural part of effective advocacy.
Positions are what parties say they want; interests are why they want it. When attorneys cling to positions, they often lose sight of underlying needs. For example, in a recent mediation plaintiff’s counsel was intransigent when it came to reducing her demand. She insisted that her clients needed the money to feel they were fairly compensated. Most of the money included in her demand was for general damages, so it had little to do with whether special damages were fully compensated and whether they were getting what they “needed.” When we explored why her clients wanted more money, it was driven to some degree by retribution.
It is difficult to get past this issue if you take it on directly. No one wants to freely admit their feelings of retribution or even anger. In my experience, most lawyers want to present their clients as reasonable and these negative feelings can detract from that presentation. The best way to explore this barrier is through open-ended questions such as “What is most important to your client about this issue?” or “If we set aside numbers for a moment, what outcome would feel fair?”
Once we can get through this issue, we can start to address the case to meet what clients really need for a settlement.
Objective standards provide a neutral basis for movement. Market data, industry norms, and legal precedent can justify adjustments without appearing arbitrary. For example, asking each side to talk about where other similar cases have resolved. Recently, in a personal injury mediation, the plaintiff’s attorney demanded $500,000 for soft tissue injuries. The medical expenses were less than $50,000. I discussed verdict and settlement data provided by defense counsel showing that similar cases averaged $150,000–$200,000. This allowed me to reframe the discussion from one that reassessed the amount in light of new information rather than capitulation.
It is important to offer language that allows everyone to save face. No one likes to back down or concede a matter. It feels like failure and triggers fear of failure and defensiveness. Instead, try to help them to “refine” their position or “adjust” their position for a better resolution.
Large reversals feel risky. Inevitably, parties take umbrage when asked to make a big move, worried that the other side will not respond in kind. That is certainly a risk. But sometimes, it is a great way to get the necessary movement toward settlement.
Another way to move is incrementally. Breaking offers into smaller, manageable shifts is often easier. But it requires time. This can be especially challenging in a half-day mediation when there is little time for positioning. But if parties are willing to participate in a full-day mediation, there is plenty of time to talk about smaller steps to keep the parties moving toward resolution.
Words matter. Shifting the focus from “winning” to “closing the deal” can also help you get parties where you want them to be. Attorneys often equate movement with loss or failure. Counter that by emphasizing the benefits of resolution:
• Reduced litigation costs
• Certainty and control over outcome
• Preservation of relationships
• Client satisfaction
Helping attorneys walk back hard positions is not about convincing them to give up; it is about creating conditions where flexibility feels safe, professional, and client-focused. By normalizing change, uncovering interests, using objective criteria, and offering face-saving language, mediators can transform rigid stances into opportunities for progress.
When attorneys leave the table feeling respected and empowered not defeated they are more likely to embrace resolution. And that, ultimately, is the mediator’s greatest success: guiding parties from entrenched positions to practical solutions without anyone losing face.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. Further information is available at www.gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
A seasoned mediator, arbitrator, and litigator since 1986. He co-founded Preg O'Donnell & Gillett over 30 years ago, helping establish it as a leading business litigation firm in the Pacific Northwest.
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