Why do lawyer incentives often work against decision making?

In mediation, everyone agrees in principle that the business leader is the decision maker. Yet if you observe what actually happens in the room, the attention still tends to drift toward the lawyer set out the framework. Not because anyone insists on it explicitly, but because that is how dispute systems have trained everyone to behave.

In litigation, lawyers drive the process. They shape the strategy, control the timing, and speak on behalf of the client. Mediation is supposed to change that allocation of authority. The decision is meant to move back to the business leader. Lawyers enter mediation under incentives that make complete sense in a litigation context: protect the position, limit exposure, avoid premature movement. Those instincts are rational. They are just not always aligned with what mediation requires.

Progress in mediation depends less on legal positioning and more on business judgment. On trade-offs rather than arguments. On committing rather than preserving optionality. The problem is that the system does very little to reset roles when the forum changes. The lawyer is no longer meant to steer the process, but the incentives to do so remain.

As a result, authority in the room becomes blurred. You see moments where alignment starts to form, where trust begins to rebuild, and then a legal caveat re-enters the conversation. Often reasonable, often well-intended, and just as often enough to drain momentum. This is not a critique of individual lawyers. It is a predictable outcome of how roles and rewards are structured.

In jurisdictions like the UK, this tension is handled more explicitly. Lawyers are expected to prepare clients for mediation as a decision moment. Cost consequences attach to how seriously mediation is approached. Advisory work shifts earlier, from driving procedure to framing risk, ranges, and consequences. That does not eliminate friction, but it clarifies something essential: who is expected to decide.

Where that clarification is absent, mediation tends to inherit litigation habits. Defensiveness crowds out judgment. Momentum gives way to process. Decisions retreat back into procedural safety. For business leaders, the consequence is not abstract. Alignment collapses, trust erodes, and conflicts that were close to resolution quietly re-escalate.

If mediation is meant to support business decision-making, authority in the room cannot remain ambiguous. Someone has to own the decision, and the system has to make that ownership unmistakable