Why is mediation so often proposed at the wrong moment?

When a dispute starts, business leaders handle it the way they handle most problems. They talk, they test options, they negotiate. At some point, often after several rounds of that, someone makes a deliberate call: this is no longer mine to carry. So it goes to the lawyers.

That decision matters more than it looks. It is not a pause but a handover, and once it happens, the dynamic shifts in ways that are difficult to reverse. The CEOs who made the call move their attention back to running the business. The dispute becomes something to be managed from a distance, waited out.

On the other side of that handover, a different logic takes over: lawyers are paid to run a process, not to stop it. Pleadings and subpoenas get drafted, positions get formalised, costs start accumulating. More than often, that work is not without value. It builds the record, tests the arguments, and forces both sides to understand what they actually have. But it also means that by the time mediation is suggested, there are often two sets of incentives working against it: a business leader who wants to get rid of it, and a lawyer who needs to make a case and a living at the same time.

In much of Europe, mediation enters the picture somewhere in that second phase. Sometimes after proceedings have started. Sometimes when the case is already before a judge. Often after months or even years of procedural build-up. And to be fair, not all of that time is wasted. Complex disputes take time to crystallise. Parties need to understand their own position before they can negotiate it. Some of that process is simply necessary. But a good part of it is also just the rhythm of litigation doing what litigation does, running its course whether or not it is still serving anyone.

Telling parties at that point to try mediation does not feel like an opportunity. It feels like a detour in a process they already chose to step away from.

There are systems where this works differently. In the UK, pre-action protocols bring mediation into play before positions fully crystallise. Courts later examine how and when parties engaged, and the consequences are real. Parties who refused to mediate have had their recoverable costs reduced even when they won. In Australia, mediation is often expected while parties still see themselves as decision makers rather than litigants. The result in both cases is earlier resolution, lower total cost, and disputes that do not consume years of management attention.

Early in a conflict, mediation can feel like a way to regain control. A conversation between people who still have authority to make decisions. Later, it feels like an interruption in a process that is already running without them. None of that requires a change in attitude. It requires a change in sequence. The question is not whether business leaders are open to mediation. Most are, at the right moment. So why do we keep offering it at the wrong one?