Mediation is a structured process. It has stages, rules, techniques and a very clear objective. More importantly, it requires the mediator to stop behaving like a lawyer, a judge, an arbitrator or the smartest person in the room. The Mediator Is Not There to Win the Argument. We were trained to argue. We look at the facts, identify the weaknesses, organise the evidence and build a case. We naturally want to know who is right, who is wrong and who has the stronger legal position. The mediator must look at the dispute differently as its role is not to decide who is right or wrong. The mediator does not give a judgment and should not impose a solution. The main role is to guide the discussion, understand the real issues, challenge assumptions, reality test positions and help the parties create their own solution. This sounds simple, but it requires real control.

A few weeks ago, during my vacation in the beautiful Elgouna, Egypt I attended the Accredited Civil and Commercial Mediation Training Programme with ADR ODR International and I finished it and few days ago I got the result of my work and I am now an Accredited International Mediator.

I have been practising law for almost twenty years. I negotiated hundreds of matters, attended settlement meetings, advised clients to accept, reject, and reduce offers and sometimes walk away completely. So, naturally, I thought I understood mediation. I did understand parts of it. But I did not understand the full process, the psychology behind it and the amount of discipline required from the mediator to make it actually work.

Many lawyers think that mediation is just a meeting where someone sits between two sides and says:

“You are asking for too much.”

“You are offering too little.”

“Can we meet somewhere in the middle?”

This is not mediation.

Mediation is a structured process. It has stages, rules, techniques and a very clear objective. More importantly, it requires the mediator to stop behaving like a lawyer, a judge, an arbitrator or the smartest person in the room.

The Mediator Is Not There to Win the Argument. We were trained to argue. We look at the facts, identify the weaknesses, organise the evidence and build a case. We naturally want to know who is right, who is wrong and who has the stronger legal position.

The mediator must look at the dispute differently as its role is not to decide who is right or wrong. The mediator does not give a judgment and should not impose a solution. The main role is to guide the discussion, understand the real issues, challenge assumptions, reality test positions and help the parties create their own solution.

This sounds simple, but it requires real control.

Imagine a case where a tenant of a retail shop claim that a landlord ignored a serious roof leak for months. The tenant says the leak caused thousands of dollars in losses and damaged the business. The landlord says the claim is exaggerated and that the tenant failed to reduce the damage. The lawyer inside the mediator may immediately begin analysing liability.

- Was there proper notice?

- Was the landlord negligent?

- Was the loss proven?

The mediator still needs to understand those issues, but the mediator must also ask different questions.

- What is most important to the tenant now?

- Is it only the financial loss?

- Is it the repair of the roof?

- Is it certainty that the same problem will not happen again?

- Is it the feeling that the landlord did not take the business seriously?

The legal dispute may be about a leaking roof. The real conflict may be about trust, respect, certainty and future business.

Mediation Gives the Parties Something Litigation Takes Away! This thing is “Control”. In court, the judge decides. In arbitration, the arbitrator decides. In Mediation, the parties decide.

The mediator can ask difficult questions, can challenge unrealistic expectations, can point out risks, contradictions, costs, delays and weaknesses. But the mediator cannot force the parties to settle. This is one of the most important principles of mediation.

It is Voluntary, and it remains non-binding until the parties reach and sign a final settlement agreement. A party can reject an offer, and leave without settlement. Of course, leaving has consequences. The dispute continues with all its negative consequences like Costs,  Time,  and Stress. The final decision may then be given to someone who knows much less about the business, the relationship and the real needs of the parties.

Confidentiality Is Not a Small Procedural Point. Mediation depends on people speaking honestly. That will not happen unless they feel safe. The process is confidential, and the discussions are conducted on a without prejudice basis. This means that offers, concessions and admissions made during the mediation cannot generally be used against a party later if the matter does not settle. This is not just legal terminology that the mediator reads quickly at the beginning. It is the protection that allows people to speak. Private meetings are even more sensitive and must remain fully confidential unless one clearly authorise the Mediator to disclose certain facts.

The mediator cannot assume. The mediator cannot think, “This information may help the settlement, so I will mention it.” Before leaving the room, the mediator must confirm exactly what can be shared and what must remain confidential. The same applies to offers. A party may say: “We may be able to pay a specific amount, but I need to speak to my partner first.” That is not necessarily a final offer. It may be an option. It may be an idea. It may be the beginning of a negotiation. A final “live” offer is one that the party has finally approved and expressly authorised the mediator to communicate to the other side.

One wrong sentence from the mediator can destroy the trust of the entire process. During the exploration stage a lot of work is done by the mediator to understands the whole story. Not only the legal facts. The facts, the feelings, the impact, the concerns, the priorities and the interests behind the stated positions.

Take a very emotional example. The family of a young adult bring a claim against the police after their son dies in custody. They say he complained of severe headaches, but no doctor was called and no proper investigation was carried out. During the mediation, the family explain the pain of losing their son and they asked the mediator how he feels about their pain or their loss. The mediator shall only acknowledge the emotion without pretending to know exactly what the parents are going through. This is empathy. Not sympathy. Not agreement. Not taking sides.

Empathy allows the parties to feel heard without affecting the mediator’s neutrality. Active Listening Is Much More Than Remaining Quiet

Lawyers are not always good listeners. We sometimes listen while preparing our next answer. We listen for the point we can challenge. We listen for the contradiction. In mediation, active listening means giving the party proper space to explain. It includes eye contact, body language, silence, nodding, short extenders such as “I see” and “please continue”, and questions that invite the party to go deeper.

It also includes paraphrasing and reframing. The facts should not change. But the language shall move from attack and blame towards needs and interests. That shift matters. Conflict Is Not Only About the Problem.

One of the useful ideas in the course was that conflict has three main ingredients:

    1. People.

    2. Process.

    3. Problem.

The problem may be money, delay, defective goods, poor service, breach of contract or damage. But the conflict may have grown because of the people and the process.

I also learned during this course about “The SCARF Model”. This model Explained Many Conflicts I Have Seen.

SCARF stands for Status, Certainty, Autonomy, Relatedness and Fairness.

These are psychological needs that can become threatened during conflict.

- Status: Do I feel respected and valued?

- Certainty: Do I know what will happen next?

-  Autonomy: Do I have control over decisions affecting me?

- Relatedness: Do I feel safe and connected to the people involved?

- Fairness: Do I believe I have been treated properly?

A business partner may say the dispute is about money, while the real issue is that major decisions were made without him. An employee may demand compensation, while the real injury is that twenty years of service were dismissed without recognition. A client may reject a commercially sensible offer because the process that produced it felt unfair. Once the mediator understands what is actually being threatened, the discussion starts to change.

Deadlock Is Not Always About the Numbers

Imagine any scenario where two parties are stuck in a decision where they reached a deadlock about a certain amount of money. Someone can offer an amount lower than the minimum acceptable by the other. That is a deadlock. The easy response is to keep asking both sides to move. The better response is to understand why they are stuck. One Party may need immediate cash flow. The other Party may accept the amount but cannot pay it at once. Now the discussion may include instalments, an early partial payment, future work, replacement services, an apology, confidentiality, repairs or another concession.

The mediator has a very important legal role here which is the “reality-test” of both parties.

- What will litigation cost?

- How long will it take?

- What evidence is missing?

- What is the best possible result?

- What is the worst possible result?

- Can the party actually prove the case in court?

Deadlock is sometimes broken by money. Sometimes it is broken by time. Sometimes by an apology. Sometimes people only need to hear: “I accept that we handled this badly.” A concession may be cheap to give but extremely valuable to receive.

This course did not teach me that mediation is softer than litigation. It taught me that mediation requires a different kind of strength. The strength to listen without judging. To challenge without attacking. To show empathy without taking sides. To understand that people do not always fight only for money.

And now, for the lawyers who actually reached this far, you have officially earned the right to claim one free sleeve of The Jurist Coffee capsules. I have just started the capsules brand, and reading a full legal article in 2026 should honestly qualify as continuing professional development. Just show me that you reached this paragraph. Anyone who jumped directly to the end is disqualified and as a trained mediator, I may have a few questions to test the credibility of your story.

But here is the real question: if most disputes continue because people feel unheard, disrespected or excluded, why do we still train lawyers mainly to speak, argue and win instead of teaching them how to listen?

‍