How can lawyers turn mediation into a real decision moment?
One of the quiet tensions in mediation is that the very skills that make lawyers effective in court do not always translate well to a decision room. When the objective shifts from defending a position to choosing between imperfect outcomes, the professional reflexes trained for litigation can start working against the process.
That role makes complete sense in litigation. Court is structured around opposition: someone asserts a right, someone resists it, and a third party decides. In that setting, caution, precision, and defensiveness are virtues. You would not want it otherwise.
What is less often made explicit is that mediation changes the task, even if the lawyers in the room remain the same. The question is no longer how to defend the client’s entitlement against attack, but how to help the client decide what to do with a conflict that is costing time, money, and management attention.
I have seen mediators restore fragile alignment between parties, only to see it collapse when a lawyer intervenes to protect the case rather than advance a decision. And when it comes to articulating what an acceptable outcome might actually look like, hesitation sets in. Not because anyone is incompetent, but because the posture remains one of defence rather than decision. The instinct is to protect the position until something external forces movement.
That instinct is not a personal shortcoming. It is a structural reflex. Legal formation rewards the ability to hold a line under pressure. It rarely rewards the ability to guide a client through choosing between imperfect alternatives before a judge imposes one.
In jurisdictions like Australia or the UK, where mediation is more embedded in the dispute landscape, that tension is addressed more consciously. Advisors are expected to prepare clients not only to argue the case, but to support them toward a decision: to quantify downside scenarios, define internal authority, and clarify in advance what trade offs are realistically on the table. Advocacy does not disappear. It is integrated with decision support, in the right forum.
Where that integration does not occur, mediation can feel like a suspension of litigation rather than a shift in posture. The same protective reflex governs the conversation, only without a ruling at the end.
From a business perspective, that is difficult to justify. Leaders do not step into mediation to rehearse their case in a quieter setting. They do so because they need clarity about what risk they are prepared to carry and what outcome they are prepared to live with.
None of this is an argument against advocacy. It is an argument for recognising that the move from advocate to advisor is not automatic. If mediation is to function as a serious decision moment, that shift has to be deliberate. Otherwise the forum changes, but the mindset does not.
