One of the questions I am most frequently asked when engaging with policymakers, judges, arbitral institutions and dispute resolution professionals across the Middle East and North Africa is deceptively simple: what next?

The question usually arises in the context of the Singapore Convention on Mediation. For some states in the region, the Convention has already been signed and ratified. For others, it remains under active consideration as part of wider legal and institutional reform agendas. Yet regardless of where a particular jurisdiction stands on the formal treaty process, the central issue remains the same. What follows the act of signature? What practical, institutional and legal steps are required to ensure that the Convention delivers meaningful change in commercial dispute resolution practice?

This is precisely the question that Professor Nadja Alexander addresses in her important article, The Singapore Convention: What Happens After the Ink Has Dried? Her central insight is both persuasive and timely: signing the Convention is not the end of the journey, but the beginning of a broader transformation in dispute resolution culture.

For Arab states, this observation is especially significant. Across the region, there is increasing momentum behind mediation as part of a wider shift towards modern, commercially responsive dispute resolution systems. The real challenge, however, lies not in treaty status alone, but in what states do next. The first step after signature or ratification must be effective domestic legal implementation, whether through direct incorporation via ratification instruments, legislative transformation through dedicated mediation laws or amendments to existing procedural legislation, or a hybrid approach combining statute and court rules. Several MENA states have already introduced, or are in the process of introducing, mediation laws and institutional rules as part of broader dispute resolution reforms. However, these reforms are often developed in isolation, without expressly linking domestic mediation frameworks to obligations arising under the Singapore Convention. For example, Qatar’s Law No 20 of 2021 on Mediation for the Settlement of Civil and Commercial Disputes, enacted after Qatar signed and ratified the Convention, does not expressly refer to it. Instead, article 2 provides that the law applies ‘without prejudice to the provisions of international agreements in force in the State’, leaving the relationship between the domestic regime and the Convention implicit rather than clearly operationalised. At the same time, several states in the region that have signed, ratified, or acceded to the Convention have yet to introduce dedicated mediation legislation that fully incorporates it into the domestic legal system. This creates uncertainty for commercial parties, who require clarity on recognition and enforcement. Going forward, domestic laws should expressly address triggering mechanisms, mediation procedure, enforcement of settlement agreements, and mediator accreditation, while remaining in technical alignment with the Convention to ensure certainty, consistency, and commercial confidence.

Yet legislative reform, however well drafted, cannot operate effectively without corresponding judicial understanding and support. In several MENA jurisdictions, mediation as it presently operates is intrinsically linked to the courts, making judicial engagement central to its success. Qatar provides a clear example: while its Mediation Law recognises consensual mediation, article 15 also expressly provides for court-annexed mediation, permitting the court to invite parties in ongoing proceedings to attempt settlement within a specified period, with the case removed from the roll upon settlement or continued if either party objects. A similar judicially integrated approach can be seen in Saudi Arabia, where the Commercial Courts Law and its implementing regulations provide for mandatory or court-directed mediation in certain commercial disputes before substantive proceedings continue. Likewise, the UAE Federal Law No. 40 of 2023 on Mediation for the Settlement of Civil and Commercial Disputes permits courts to refer disputes to mediation, subject to party consent, further embedding mediation within the formal litigation framework. This judicial dimension becomes even more significant in the context of cross-border disputes and the Singapore Convention. Where mediated settlements may later be subject to international recognition and enforcement, judges must be equipped with a clear understanding of the Convention’s objectives, the limited grounds for refusal under article 5, and the principles governing enforcement of international settlement agreements. Judicial training programmes, specialist commercial benches, and procedural guidance are therefore essential to ensure that court-linked mediation frameworks operate consistently with international obligations and foster commercial confidence.

Beyond courts and legislation, the success of mediation also depends on the strength of the institutional ecosystem within which it operates, supported by credible institutions, professional standards, and market confidence. Several states across the MENA region have already taken important steps towards the institutional inclusion of mediation, reflecting a growing recognition of its commercial value. The Saudi Center for Commercial Arbitration (SCCA) Mediation Rules (2016) marked an early institutional move in Saudi Arabia, followed by the Bahrain Chamber for Dispute Resolution (BCDR) Mediation Rules (2019), the Oman Commercial Arbitration Centre (OAC) Mediation Rules (2021), and most recently the Dubai International Arbitration Centre (DIAC) Mediation Rules (2023). These developments demonstrate that mediation is increasingly being embedded within established arbitral institutions that already enjoy strong reputational capital. The next step is to ensure that mediation is positioned not merely as an adjunct to arbitration, but as a sophisticated dispute resolution process in its own right, particularly in sectors central to the region’s economy such as infrastructure, construction, energy, technology, and investment disputes, where speed, confidentiality, and commercial flexibility are especially valuable.

Institutional development must, however, be matched by investment in human capital and professional expertise. The region needs a specialised cadre of mediators with expertise in complex commercial and cross-border disputes, including infrastructure, PPPs, technology, IP, and investment matters. This requires advanced training, certification, and continuing professional development. Encouragingly, mediation training in collaboration with internationally recognised accreditation bodies such as the Centre for Effective Dispute Resolution (CEDR), the Singapore International Mediation Institute (SIMI), and the International Mediation Institute (IMI) is already being offered in several MENA states and should be further promoted. This presents a major opportunity for the region not merely to use international mediation services, but to emerge as a leading global and regional mediation hub.

Equally, the long-term success of mediation in the region will depend on how effectively it is integrated into existing dispute resolution pathways. One of the most promising global developments has been the rise of hybrid models such as Med-Arb and Arb-Med-Arb, which are particularly well suited to the MENA region given its established arbitration institutions and increasingly sophisticated commercial courts. Rather than being treated as a separate or competing process, mediation should be embedded within the wider dispute resolution architecture through multi-tier dispute resolution clauses, mediation windows within arbitral proceedings, and seamless pathways to court enforcement. Several institutions in the region already support this approach through model clauses and procedural frameworks, including DIAC, SCCA and OAC. This integration is especially valuable for large construction, infrastructure, and energy disputes, where early facilitated settlement can preserve relationships and reduce cost and delay.

Perhaps the most important challenge, however, is cultural rather than legal. The Convention cannot transform dispute resolution culture on its own. Commercial parties, legal advisers, state entities and business communities across the Arab world must begin to see mediation as a strategic commercial tool rather than merely a conciliatory option of last resort.  This requires a shift in legal culture. Law firms must become more comfortable advising clients to mediate early. In-house counsel must see mediation as a risk management mechanism. Public sector bodies and state-owned enterprises must begin incorporating mediation clauses into their contracts. Ministries and procurement authorities should consider embedding ADR pathways within standard project documentation.

Yet when these developments are viewed collectively, a deeper structural challenge becomes apparent. Taken together, the measures discussed above demonstrate that the MENA region is, in many respects, responding to what the literature demands: states are signing and implementing the Singapore Convention, introducing mediation laws, expanding institutional rules, investing in professional training, encouraging judicial engagement, and developing hybrid processes. However, the principal difficulty is that these steps are often undertaken in isolation and in an independent, fragmented manner, rather than as part of a cohesive ADR strategy. Reform has too often been reactionary rather than structured, driven by immediate policy needs rather than a long-term systemic vision. Simply signing the Convention, enacting a mediation law, adopting institutional rules, or offering training is not, in itself, sufficient. What is required is a coordinated and systematic framework in which legislation, institutions, courts, professional standards, and enforcement mechanisms operate together as an integrated dispute resolution ecosystem.

This, ultimately, brings us back to the central question posed at the outset: what truly comes next after signature? Ultimately, the true success of the Singapore Convention in the Arab world will not be measured by the number of signatures or ratifications. It will be measured by whether mediation becomes a routine feature of commercial contracting and dispute strategy. That is where the real transformation lies. As Professor Alexander so powerfully notes, the Convention is an invitation to reshape dispute resolution culture. For the Arab states, that invitation now presents a major strategic opportunity. The real work begins after the ink has dried.

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The relationship between private international law and mediation is not apparent. As is well known, mediation is primarily a non-legal dispute resolution method, where emphasis is mostly put on relationships and personal dynamics, not on the application of the law. Interest behind the position is what the mediator is looking for, before they embark on the negotiation stage of the mediation.

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The “legal shell” of mediation

However, the law is always there, as a “shell” around mediation, starting from the contract (or the court order, or the law as the case may be) to mediation, the law that governs the process of mediation and eventually the law that governs the agreement after mediation. Indeed, in all the above, some law shall apply. In a domestic setting, this is the law of the country where mediation takes place. But what is the case internationally?

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The law in cross-border mediations

In an international dispute having cross-border dimension, the relevant private international law questions are related (a) to the venue (b) to the applicable law and (c) to the enforcement, if needed. These points form the second (special – microview) part of the book).
The first (general -macroview) part is about the way that the international community approaches mediation from a legal point of view. In this context, a general discussion on mediation is done (roots, terminology, non-legal aspects, and then a more focused discussion on the “legal shell”, on mediation and the question of access to Justice, on the “special” character of mediation as a dispute resolution method and on the so-called “hybrid” nature of the MSA, as well as on the legislative initiatives of the international community regarding mediation.

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Discussing mediation from a private international law standpoint

As is well known, venue, applicable law and enforcement are the three main subparts of private international law. The position on mediation and private international law is as follows:

Venue. While there is no jurisdiction in mediation, venue can be crucial. First of all, the parties must be happy to travel and spend time at the venue. Secondly, the process rules will most probably differ from country to country (for example the question whether internal confidentiality is the default rule, or the exact opposite unless a party chooses not to disclose). It is important to agree in advance on such rules that do not need to be the ones of the venue (as the venue is not forum), save for any public policy rules that apply there and cannot be contracted out. Thirdly, choosing the venue may also be relevant for the enforcement of the MSA, if ever needed. This question needs to be assessed proactively, also with a view to the choice of venue.

In the book, one can find an extended discussion of all above points, with emphasis on commencement of mediation (contract, compulsory mediation under law or court order), or the mediation process, especially on the conduct and duties of the mediator. In this context, the UNCITRAL model mediation law and rules are extensively presented.

Applicable law. There exist few contracts in a mediation environment, next to the substantive law of the actual contract (if any): (i) The agreement to mediate and the agreement with the mediator. One needs to make sure that the applicable laws in these two agreements do not invalidate any provision of these contracts. (ii) More importantly the MSA. The applicable law to it will bear influence on its enforcement and on any action for its annulment. In the book the method that can be used to define the applicable law in all above contracts is discussed. One can find answers to the problems that may arise in this context, to the extent that such answers are feasible at the present stage of development of mediation.

Enforcement. If a party to the MSA does not perform its obligations under it, the question of enforcement arises. In this context, one can find extensive discussion of the 2019 Singapore Convention on Mediation as well as of the EU systems of enforcement, based on the relevant EU regulations and references to the system oh OHADA. The former has adopted the “direct” enforcement model whereby the place of origin of the MSA is not important (although the term used is “relief”, to mitigate the various legal traditions of the contracting parties of the Convention). What matters is for the state of enforcement to have adopted the Convention. The EU has adopted the “cross-border” enforcement model which means that first an MSA becomes enforceable in a member state of the EU and it can then be enforced in the rest of the EU by virtue of the enforcement regulations of the EU. To be noted here that the fact that the EU has not ratified the Singapore Convention makes enforcement of MSAs from third countries literally impossible in those Member States that do not allow for direct enforcement. Therefore, one needs to examine proactively if such enforcement, either cross-border (in which case the venue matters) or direct, is possible in the country where enforcement may have to take place eventually. To be noted that under certain conditions, the 1958 New York Convention on arbitration can also be used for enforcement.

One important point is that the international community has not worked on all the above issues with equal effort. In fact, the systems of enforcement are the most developed internationally, followed by venue, while applicable law has not stirred the interest of the international community in relation to mediation yet, and in this sense the discussion in the book comes from general applicable law standpoint.

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This book can be a valuable assistance to the practitioners of international commercial mediation, both mediators and lawyers and is hoped to initiate a wider discussion of the relevant topics.

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Nature of the Conflict

This matter involved a dispute between a real estate developer and one of its suppliers concerning

alleged unpaid invoices. The dispute had already escalated into formal court proceedings, with both

parties firmly positioned in adversarial roles.

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At its core, the disagreement was not limited to the quantum of outstanding payments. It was

compounded by:

 differing interpretations of contractual obligations

 a breakdown in prior settlement discussions

 and a deterioration of the commercial relationship

Importantly, both parties operated within the same sector, and despite the dispute, there remained

potential for future business collaboration, though this was not initially acknowledged.

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How the Mediation Process Was Conducted

The mediation was conducted over three structured sessions, each reflecting a shift in dynamics,

participation, and ultimately, progress.

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Session 1: Procedural Engagement Without Substantive Movement

The first session was attended primarily by legal representatives:

 external counsel for one party

 in-house and external counsel for the other

From the outset, it became apparent that one party’s legal representative had little intention of

engaging meaningfully in settlement discussions. This was evident in both joint and private sessions,

where there was:

• minimal willingness to exchange information

• resistance to exploring settlement options

• reliance on rigid, positional arguments

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This dynamic persisted notwithstanding that, during the preparation stage, the mediator had

confirmed that all participants held authority to settle. In practice, however, it became clear that

while the representatives possessed formal legal authority (power of attorney), they did not have

the necessary commercial mandate to negotiate and conclude a settlement.

During this session, the defendant advanced a financial offer. However, the decision-making

authority rested with the client, who, when consulted, rejected the proposal outright.

At this stage, the process reached an early impasse.

Recognising this, the mediator identified a critical structural issue:

The absence of the right people, specifically the principals and decision-makers, was preventing any

meaningful progress.

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The mediator therefore adopted a strategic intervention:

 pausing the process rather than forcing movement

 recommending the attendance of principals with full settlement authority

This reflects a core mediation principle:

Bringing the right people into the room is often the single most important factor in unlocking

resolution.

The session was adjourned on that basis.

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Session 2: Reframing the Process and Breaking the Impasse

The second session marked a turning point.

The principal attended, accompanied by:

 an external lawyer

 an interpreter

Following the mediator’s opening, a key process decision was made. The mediator proposed that

discussions proceed in the principal’s native language. This required restructuring the legal team, as

one lawyer did not speak the language and was replaced.

This demonstrated an essential mediation quality:

Flexibility in process design to enable authentic communication.

The session began jointly but quickly revealed significant tension rooted in previous failed

negotiations. The mediator moved to private caucuses to:

 de-escalate the situation

 allow candid expression

 better understand underlying interests

During caucus:

 The defendant authorised disclosure of its position and calculations.

 The claimant initially rejected this and maintained a litigation stance.

At this point, the mediator applied impasse-breaking strategy, including:

 reality testing (time, cost, litigation risk)

 encouraging reassessment of records after 18 months of dispute

 reframing the discussion from positions to evidence

The claimant agreed to review its position.

In response, the defendant agreed to disclose detailed supporting documentation, thereby

increasing transparency and shifting the discussion from positions and assertions to an evidence-

based dialogue. Notably, this material had previously been withheld for use in litigation, making its

disclosure a significant turning point.

A Critical Breakthrough: Addressing the Real Issue

Before adjourning, the mediator invited final reflections.

This led to a pivotal moment.

The claimant clarified that the core issue extended beyond financial considerations and was rooted

in dissatisfaction with how he had been treated during prior negotiations. This marked a critical

cultural turning point in the mediation.

Cultural considerations in this context went far beyond language alone. While interpretation had

been available, it became evident that personal messages, particularly those carrying emotion,

context, and nuance, are far more effectively expressed in one’s own language. Once the claimant

spoke directly, rather than through an interpreter, the depth of his concerns became fully

understood.

This shift enabled a more authentic exchange. It was at this stage that real understanding began to

emerge, as the parties were able to engage not only with the substance of the dispute, but with the

underlying human and relational dimensions that had previously remained obscured.

The defendant acknowledged this and responded constructively.

This moment:

 diffused long-standing tension

 rebuilt a degree of trust

 shifted the dynamic from adversarial to problem-solving

It also reinforced a key mediation truth:

Disputes are rarely only about money or legal rights, even if that is how they first present.

The parties began to recognise:

 their shared industry position

 the possibility of future collaboration

Importantly, claimant’s counsel confirmed:

resolving the relational issue was essential for settlement.

The defendant then presented a revised, structured and evidenced offer.

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Session 3: Convergence and Resolution

By the third session, the tone had fundamentally shifted.

The parties returned with:

 clearer understanding

 reduced emotional tension

 increased trust in the process

The claimant accepted the defendant’s offer.

The dispute was resolved, and court proceedings were withdrawn.

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Key Tools, Strategies and Principles

Several mediation elements proved decisive:

1. Bringing the Right People

 Attendance of principals and decision-makers

 Ensuring authority to settle

 Moving beyond purely legal representation

2. Managing Impasse Strategically

 Recognising early deadlock

 Pausing rather than forcing progress

 Using phased engagement to unlock movement

3. Patience and Process Discipline

 Allowing the process to evolve over multiple sessions

 Avoiding premature pressure to settle

 Trusting that progress is often non-linear

4. Trusting the Mediation Process

 Building confidence incrementally

 Allowing disclosure at the right time

 Creating a safe environment for candid dialogue

5. Flexibility

 Adapting language and structure

 Adjusting participants

 Responding dynamically to party needs

6. Reality Testing

 Litigation risk analysis

 Time and cost considerations

 Evidentiary weaknesses

7. Transparency and Information Exchange

 Gradual disclosure of key documents

 Moving from assertion to substantiation

8. Addressing Human and Relational Factors

 Acknowledging emotional drivers

 Repairing communication breakdowns

 Reframing the dispute

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Outcome and Impact

The mediation resulted in:

 a full and final settlement

 withdrawal of court proceedings

 restoration of a workable commercial relationship

More importantly, it achieved:

a shift from confrontation to collaboration

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Practical Takeaway

This case highlights several core lessons for practitioners:

 Mediation is not just about settlement, it is about unlocking resolution

 Impasses are part of the process, not the end of it

 The presence of decision-makers is critical

 Patience and trust in the process are essential

 Legal disputes often mask relational breakdowns

 Cultural awareness can be determinative and, if overlooked, may become a critical barrier to

reaching settlement

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Ultimately:

Effective mediation does not force outcomes, it creates the conditions in which resolution becomes

possible.

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As a barrister, solicitor, and mediator, I have watched mediation resolve thousands of disputes. Yet too often it is treated as a procedural step on the way to trial or as an extension of adversarial advocacy. Lawyers prepare as if they are about to face a judge, instead of embracing the distinct opportunities mediation provides. They risk not only missing the best chance for their clients to reach a resolution but also the opportunity to strengthen their practices over the long term.

Mediation advocacy requires skills that go beyond traditional litigation advocacy, including different preparation, emotional intelligence, creativity, and a willingness to view disputes as complex systems rather than linear legal contests. In this article, I share practice-based insights on mediation advocacy, covering current statistics, the “superpower” of mediation, the solicitor’s unique role, timing and mediator selection, common mistakes, preparation, the use of joint sessions, and what happens after the mediation, so that solicitors can extract maximum value for clients and, in turn, for their practices.

Settlement is the rule, not the exception

The reality of civil litigation is simple: most cases settle. In Australia, it is widely understood that the overwhelming majority of civil proceedings resolve before trial (commonly cited at around 95 per cent). In the UK, practitioners often cite that only 1–3 per cent of civil matters reach a full trial ; in the US, figures of 90–97 per cent settling before trial are frequently reported. Precise national percentages vary by jurisdiction and measurement, but the direction is unmistakable: litigation mostly ends by agreement, not judgment. Mediation is a key driver of these settlements. Commercial mediation in the UK achieved an 87 per cent overall settlement rate with 70 per cent of cases settling on the day and a further 17 per cent shortly after. In New South Wales, court-annexed mediations achieve settlement rates of 48 per cent on the day, with up to 70-80 per cent resolved shortly after. It is evident that the civil justice system primarily operates through negotiated resolutions. Additionally, over 90 per cent of mediated cases ultimately reach a settlement. The main issue is not whether a case will be settled, but rather the timing, approach, and the extent to which the solicitor uses the mediation process to achieve the best outcome for the client.

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Mediation, a superpower

Why is mediation so effective? Because it allows us to solve the whole problem. Litigation is bounded by pleadings, evidence rules and binary outcomes; mediation is a flexible, open canvas. It can resolve not only the legal questions but also the human and commercial dimensions; broken trust, reputational risk, timing, cash flow, confidentiality, and future business. Most disputes do not begin life as legal problems; they begin as human problems: clashing perspectives, unmet needs, strained relationships. Law is the framework we later overlay. Mediation takes us back to the source and allows us to test solutions at the human, economic, and legal levels. In practice, that means structuring phased payments, renegotiating supply terms, agreeing apologies or non-disparagement, building reputational safeguards, or crafting equity swaps: remedies that a court cannot, or would not, order in a single judgment. Importantly, mediation compresses time and cost. Even when a matter does not settle on the day, it often narrows the issues, reduces rancour, and creates settlement momentum. From the client’s perspective, that is value. From the solicitor’s perspective, that is advocacy. The breadth, adaptability and client-centred control are what make mediation a superpower. The task for lawyers is to ensure it is used to its full potential.

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The solicitor’s unique role in mediation

Clients who encounter legal challenges may find themselves in a position of vulnerability, relying on their solicitors for trusted guidance and representation. During trial proceedings, the barrister predominantly serves as the client’s advocate before the court, while the solicitor facilitates the process by providing essential support and coordination. In mediation, the solicitor serves a crucial function as adviser, coach, and strategist, effectively facilitating communication and guidance throughout the negotiation process. In mediation, the client is the decision-maker. A solicitor is a part advocate, part negotiator, part counsellor. They till protect their clients’ interests, but they frame arguments in commercially persuasive and human terms; they coach clients to speak credibly when their voice will make the difference; they reality-test offers so clients make informed decisions. When a solicitor embraces this unique and vital role with a full understanding of the potential of mediation, it strengthens their effectiveness immeasurably. In mediation, solicitors act as trusted representatives who, through their client knowledge and mediation’s flexibility, help clients to turn vulnerability into confidence and control over the dispute.

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Timing, decision to mediate, and the invitation

There is no formula for timing. The optimal window turns on the client’s goals, case complexity, procedural posture, and the other party’s willingness to engage. In practice, I have found the single most important anchor is the client’s goals; what they need to achieve (and avoid), and what the dispute is doing to their business and relationships.

Three practical points:

- Earlier is usually better: once there is enough information to negotiate responsibly. The longer litigation runs, the more money is spent, positions harden, and relationships fray. The sooner we can turn the dispute into a structured problem-solving exercise, the better.

- The invitation is a sign of strength: not weakness. Proposing mediation signals leadership and professionalism. A meaningful offer stems from deep client discussions and research into the other side’s situation and environment. Make the offer attractive by showing you understand the other side’s interests (continuity, cost, reputation) and framing mediation as a path to those interests. Outline specific benefits for them, not just in general. Sometimes the client, coached by you, is the most authentic messenger. If direct outreach is sensitive, enlist the mediator as a neutral “bridge”.

- Revisit the decision continually: as new facts emerge, costs accrue, or tactics shift, a previously “unripe” case can become ripe. Timing is strategic, not static.

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Choosing the right mediator

Choosing the mediator is a solicitor’s hidden superpower. Deep subject-matter expertise can assist; however, legal or industry knowledge is secondary to the ability to effectively guide parties toward settlement. A good mediator will quickly grasp the key legal points, but not every legal or industry expert is skilled in subtle diplomacy, process fluency, neutrality, negotiation craft, and emotional intelligence to manage power imbalances and high conflict.

Ask yourself:

- Is the mediator primarily facilitative, evaluative, or transformative, and which style suits the personalities and culture in this dispute?

- Will they balance the law, the problem and the relationship, rather than fixating on only one?

- Do they encourage joint sessions or default to caucus?

A solicitor can easily assess this by contacting the proposed mediators and discussing the matter. If the mediator is reluctant to listen, ignores your story or cultural background, dismisses the emotions or legality of the conflict, or finds it difficult to engage, you can determine whether the mediator is suitable for the mediation. A mediator who can hold legal, commercial and human threads in tension gives your client the best chance of both settlement and a sustainable outcome.

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Common lawyer mistakes in mediation

Even strong lawyers stumble in mediation. Five predictable traps:

1. Poor preparation: some lawyers wrongly believe there is no downside to participating since the process is non-binding, and they do minimal preparation. They may have a thin understanding of the file, no clear negotiation plan, or they’ve failed to exchange crucial documents beforehand. As a result, a key opportunity is missed, and the client has a poor experience.

2. Insufficient client preparation: if the client is overly anxious, surprised, becomes defensive during joint sessions or maintains unrealistic expectations, this may indicate areas where additional guidance from solicitors is needed. (See the next section.)

3. Treating mediation like a trial: adversarial posturing, point-scoring openings, or personal attacks shut down dialogue. Swap battle mode for problem-solving.

4. Rigid “bottom lines” and ultimatums: have a walk-away point but beware of early ultimatums that destroy flexibility and credibility.

5. Ignoring human factors: emotions, reputations, and relationships drive settlement. If lawyers address only the law and money, they miss half the dispute.

Each of these errors damage not only the mediation process but also the client’s experience, which subsequently influences their view of their solicitor.

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Essential preparation for a mediation

Preparation is where solicitors can make the biggest difference. In court, you speak for your client; in mediation, you prepare your client to speak. Preparation isn’t about the case only; it’s about the client also.

- Educate the client: explain the structure (joint session/caucus), the mediator’s role (facilitator, not judge), and confidentiality/without prejudice. Normalise the slower pace and the back-and-forth of the day. Anxiety drops when surprises disappear.

- Identify interests: go beyond legal positions to uncover what truly matters – timing, certainty, apologies, reputational safeguards. Help the client articulate their underlying interests, needs and priorities, as distinct from their legal “position.” Do the same exercise, thinking about the other side’s likely interests. This frames the negotiation in terms of mutual problem-solving exercise.

- Risk analysis: map best/worst-case outcomes, probabilities, timelines and cost. Tie the analysis to the client’s commercial reality (cash-flow, management bandwidth, market impact).

- Strategy and role planning: develop a negotiation strategy with your client. Design the mediation process with the mediator (possibly other side) at the pre-mediation conferences. Decide on tactics like the opening offer or statement, what concessions might be made, and what your bottom line is (and critically, whether the bottom line is flexible). I often encourage clients to speak during the opening joint session or at least to directly answer some questions. Personal involvement can show sincerity and can convey things (e.g. regret, determination, goodwill) better than any lawyer’s argument.

- Manage expectations and emotions: coach the client to manage heat—lowball offers, blame, or harsh words—and to keep eyes on the goal. By demystifying the process and doing this groundwork, you empower your client to actively participate in the mediation rather than being a deer in headlights. An informed, prepared client paired with a prepared lawyer is the recipe for mediation success. Proper preparation transforms mediation from a legal exercise into a human experience and a problem-solving exercise. And clients never forget who gave them that voice.

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Joint sessions: the hidden goldmine

Many lawyers fear joint sessions. In my experience, they are often the hinge on which settlements turn. Over-reliance on caucus can sap commitment and leave parties disengaged. By contrast, joint sessions foster trust, allow direct communication, humanise the dispute, and give clients their “day in court” without the costs or trauma.

Practical tips for joint work:

- Don’t wing it: plan your message: clear, constructive, aimed at persuasion, not intimidation. Recognise and validate what you’ve heard from the other side, which builds credibility. Ask questions to understand the other side, not to intimidate.

- Frame interests, not blame: keep focus future-oriented: “How do we fix this?” not “Who caused this?”. Try not to review the prior negotiation history. Use business and human language, not legal jargon. Frame your client’s perspective in a reasonable, interests-focused way. For example, rather than “We are here because you breached the contract and owe us $500,000,” consider: “We’re here because our client needs certainty about payment and completion of this project, and we want to find a solution that works for both sides.

- Empower the client to speak: the client is best placed to tell the story in a joint session. Coach the client to speak calmly and genuinely to the other side, not at the mediator, about impact and hopes. A sincere client statement can humanise your case more than any legal argument. Expect heat, let some emotion play out under the mediator’s guidance.

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After the mediation

What happens after the mediator adjourns is part of advocacy too:

- Capture the deal: leave with a signed term sheet or a near-final deed. Ambiguity grows overnight.

- If not settled, keep momentum: many “no-settle” days become settlements within weeks. Use post- mediation shuttling, targeted information exchange, or a short follow-up session to close remaining gaps.

- Debrief and reset: report clearly to the client: what moved, what remains, next steps and timelines. The client’s experience of closure (even partial) strongly colours their trust in you.

A disciplined post-mediation phase preserves gains, converts near-misses, and leaves clients feeling guided, not abandoned.

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How great client experience builds solicitors’ practices

Mediation advocacy is not only about outcomes; it is about the client’s experience. Clients remember not just what they got, but how they felt. If they felt heard, prepared and in control; if you saved them time, money and anguish, they will trust you deeply, return to you in future disputes, and refer colleagues and friends. Even where a mediation yields only partial agreement, clients often say, “We didn’t sort out everything, but we finally understood each other that changed everything.”

From a practice perspective, this is a competitive edge. You become known as the lawyer who can resolve tough matters intelligently, not just fight them expensively. Your files turn over faster, your matter-mix improves, and your referral base strengthens. In short, litigation may win judgments; mediation advocacy wins clients and clients are the foundation of every thriving practice.

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Conclusion

Mediation is no longer an “alternative”; it is the mainstream path for civil dispute resolution. For solicitors, mastering mediation advocacy is therefore essential. When solicitors prepare clients thoroughly, time the process wisely, choose the right mediator, avoid litigation reflexes, run effective joint conversations, and steward the matter after the day, they deliver better outcomes and better client experiences.

In doing so, solicitors serve their clients’ immediate interests and strengthen their own practices. Mediation advocacy does not turn solicitors into softer lawyers; it makes solicitors smarter, more trusted lawyers. And that is what clients value and remember.

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'First published at LSJ Online, October 2025’