Preparing for Resolution: Two Practical Contributions from the AAA Mediation Magazine

One of the strengths of the AAA Mediation Magazine is that it not only explores large conceptual questions about mediation’s future; it also keeps returning to the practical craft of mediation itself. Two recent articles: James E. Purcell’s Managing Client Expectations in Mediation and Christopher M. Ernst’s “Winning” the Mediation vs. Resolving the Dispute: How Mediators Can Prepare Counsel (and Clients) for Real Resolution do just that. Each look at familiar reason why mediations underperform: not usually because settlement is impossible, but because clients, counsel, or both arrive with the wrong mindset about what mediation is for.

Read together, the two articles make a persuasive point. Effective mediation is not simply a matter of what happens on the day. It depends heavily on preparation, framing, and expectation management long before parties sit down in the same room. Both authors write from a commercial perspective, but their observations travel well beyond that field. Any mediator dealing with emotionally invested parties, ambitious counsel, and imperfect information will recognise the patterns they describe.

Purcell’s article is rooted in a proposition that is deceptively simple: clients often enter mediation expecting vindication, validation, or a clear demonstration that they are “right,” when mediation is in fact designed to help parties assess risk, make trade-offs, and find a workable outcome. He illustrates the point through a family business contract dispute in which expectations were badly misaligned and the emotional history between the parties threatened to overwhelm the process. His response to this situation  is disciplined front-end work: early ex parte calls with counsel, candid conversations about what mediation can and cannot deliver, and careful thought about whether and when a joint session will help or hinder progress.

What is particularly valuable in Purcell’s piece is that he treats expectation management not as a soft interpersonal skill but as a central part of mediation architecture. He shows that unmanaged expectations do more than create emotional difficulty. They distort parties’ understanding of compromise, encourage them to equate movement with weakness, and make it harder for counsel to give realistic advice without appearing disloyal. His discussion of when to begin in caucus rather than joint session is also a useful reminder that process design should follow the needs of the dispute, not habit or orthodoxy.

Ernst’s article arrives at a similar destination from a slightly different angle. His target is the performative mediation: the session in which counsel turn up with “Trial Day in their eyes,” complete with overlong submissions, rigid positions, and a determination to “win” the mediation rather than resolve the dispute. His proposed corrective action is a practical playbook for mediators. It begins with a short, focused pre-mediation call to define success, identify constraints and information gaps, and reset the mission from advocacy contest to problem-solving exercise. It then moves through the preparation of mediation statements rather than litigation briefs, client preparation around acceptable outcomes and emotional readiness, tightly managed openings, active debiasing, and a simple valuation toolkit.

There is much here that international and domestic mediators alike will find useful. Ernst’s emphasis on replacing “briefs” with mediation statements is well judged. Language shapes behaviour. A document labelled and drafted as a brief invites combat. A statement focused on business reality, risk, and resolution frameworks is far more likely to support settlement thinking. Equally helpful is his insistence that mediators should help counsel prepare the person, not just the case. That point is easy to state but often neglected in practice. Clients who are emotionally unprepared, insufficiently briefed on settlement ranges, or still expecting a courtroom-style reckoning can derail even a well-structured mediation.

The two articles sit well together because they address opposite sides of the same problem. Purcell is concerned with recalibrating what parties expect mediation to do. Ernst is concerned with recalibrating how counsel and mediators prepare people to use mediation well. Both reject the idea that mediation is simply a venue in which existing litigation habits are replayed in softer surroundings. Instead, both demonstrate that mediation requires its own discipline, its own language, and its own preparation.

For readers of the Kluwer Mediation Blog, there is a wider point here. As mediation becomes more institutionalised across jurisdictions, there is a risk that familiarity breeds complacency. Because mediation is now common, parties and lawyers may assume they already understand it. Yet these articles remind us that much of mediation’s effectiveness still depends on careful attention to fundamentals: who needs to hear what before the mediation, what realistic success looks like, how the process is framed, and how emotion, identity, and bias are managed. Those are not secondary concerns. They are often the difference between an expensive day of repetition and a genuinely productive negotiation.

There is also an important professional message for mediators. Neither article presents the mediator as a passive host. On the contrary, both assume a mediator who is active in shaping the process: setting expectations early, guiding counsel, choosing the right opening structure, reality-testing when necessary, and protecting the parties from predictable errors in judgment. That is a useful counterweight to overly narrow descriptions of mediator neutrality that leave too little room for process leadership. The mediator’s role is not to decide the dispute, but it certainly includes helping the participants engage with it in a way that makes resolution more possible.

In that sense, these two AAA contributions are not only practical pieces. They are also statements about mediation professionalism. They suggest that good mediation depends as much on preparation, structure, and disciplined expectation management as it does on intuition in the room. That is a message worth repeating, especially as more jurisdictions encourage mediation and more users encounter it not as an exceptional process, but as a routine part of dispute resolution.