Mediation as a Conflict Strategy

In the previous article, we looked at the preparation of mediation. Even the best preparation, however, has limited value if it cannot be translated into decisions at the table. What matters just as much is how that preparation is carried into the process, who actually represents positions and interests, and whether those present have the authority to make binding decisions. Role allocation therefore does not just shape the process, it often determines whether the mediation leads to an outcome at all.

If counsel assumes the lead, the other side often becomes more guarded. If the client remains passive, decisions stall. If internal alignment is missing, concessions made during the session may be revisited or withdrawn after a break, which can be perceived as bad faith or delay. The result is not just inefficient sessions, but additional procedural steps, rising costs, and a gradual weakening of the party’s negotiating position.

This article therefore addresses the allocation of roles and typical red flags: Are the participants at the table empowered to negotiate and conclude an agreement? Is the necessary legal, strategic, operational and commercial expertise represented? Are there effective feedback loops to the relevant internal stakeholders and decision-makers? And ultimately, what signals does the specific constellation at the table send to the other side?

Who is at the table: attendance and mandate

The set-up and participants are usually discussed with the mediator at the outset of the process. It is nevertheless worth clarifying internally in advance: Who needs to be present throughout? Who is required only for specific topics? Who needs to be available on short notice to confirm decisions?

There is no universal model. The appropriate composition depends on the nature of the dispute, the issues at stake, and the dynamics in the room. In some cases, a leaner group generates more momentum than a full room. Check-ins, breakout sessions and clearly structured decision points allow for flexible involvement without losing control of the process.

The following considerations can help structure the team effectively.

Who decides? At the core is the presence of someone with actual decision-making authority. This does not require unlimited discretion. A clearly defined negotiation corridor creates room to move without creating internal risk. A mandate that is too narrow prevents movement, one that is too broad creates internal uncertainty. What matters is that the parameters for decision-making are clearly defined in advance.

The attendance of a decision-maker is not only a logistical issue, but also a signal. It demonstrates that the process is taken seriously and often increases the other side’s willingness to engage in negotiation talks.

Are Know-How and Interests represented? Any preparation only has value if it is present at the table. Hence, it is necessary to have attendees with know-how on the facts, the legal position, the outcome of the risk assessment, the available negotiation space, and the BATNA. Equally important is the attendance of individuals who can speak to internal interests. These interests are rarely aligned: management may want to preserve the business relationship, the legal department may want to send a signal, operations require planning certainty. If these perspectives are not aligned in advance, there is no reliable basis for decisions that will be supported internally.

Who is relevant for implementation? Consider those whose approval is required or who will have to implement the outcome. A CFO who blocks after the negotiated solutions, a bank that withholds consent, a supervisory board with final authority: if these decision realities only become visible during the mediation, momentum is typically lost. The result is often an adjourned session or an outcome that does not hold internally. Operational teams must be able and willing to implement what is agreed. Any internal or external approvals should therefore be identified and accounted for in advance.

Who safeguards the process? Involving legal advisors, tax experts and other specialists may be necessary for two reasons: to support the negotiation process structurally and to ensure that proposed solutions are legally viable. At the outset of mediation, key elements, in particular the other side’s interests, are not yet visible. Maintaining ongoing alignment with (legal) advisors helps preserve momentum.

What does this look like in practice? A primary tenant of commercial premises had assumed long-term renovation obligations towards the owners and sublet the premises at a significant markup. As all parties involved, owners, primary tenant, and subtenant, became dissatisfied, mediation was initiated. The owners wanted a reliable long-term tenant, the primary tenant wanted to exit the lease, and the subtenant was interested in stepping into the primary tenant’s position but reluctant to assume the renovation obligations.

The solution that emerged was that the subtenant acquired the entire property. This eliminated the issue of renovation obligations, the primary lease was terminated by agreement against payment, and all parties largely achieved their objectives. Without legal and tax input at the table, this option would neither have emerged nor been assessed for feasibility during the session. That access depends on effective coordination with the relevant experts, both internal and external.

What the composition of the room signals

The composition of the team and the way it presents itself shape the dynamic before any substantive discussion begins. They influence whether and to what extent movement is possible.

• If a decision-maker is absent, this is typically read as a lack of willingness to settle. The other side acts more cautiously, as it is unclear whether interim agreements will hold. In some cases, this is also perceived as a lack of respect.
• If only legal representatives are present, the focus often shifts from commercial resolution to legal positioning. Statements become more guarded, positions more entrenched, and the space for open discussion narrows.
• Where parties are accompanied by counsel, the interaction may be perceived as strategically staged communication, often in the sense of a good cop bad cop dynamic and might reduce the willingness to make concessions.

This does not mean that such constellations should be avoided altogether. What matters is awareness of their impact and the ability to respond: by adjusting participation for specific sessions, ensuring internal alignment in advance, or adapting the composition if a stalemate emerges.

Example: Two entrepreneurs with a long-standing business relationship become involved in a serious dispute. Both sides involve counsel and additional participants. Ahead of the mediation, a joint process strategy is developed: topics are structured, interests clarified, roles defined. It is agreed that the first round will take place directly between the two entrepreneurs. The personal relationship underlying the original deal is still present. In that direct exchange, both sides articulate their interests openly. On that basis, a resolution is reached, reviewed internally, and translated into a formal agreement with the involvement of counsel.

Role allocation within the team: who speaks, who advises, who decides

Before the mediation begins, it must be clear who leads the discussion, who advises, and who decides. In practice, these questions are often assumed rather than explicitly addressed. The result is improvisation during the sessions, which - to the other side - often appears as inconsistency. If different members of the team articulate diverging positions, this is perceived as confusion or tactical maneuvering. At the same time, developments during the session may require internal coordination. Mediation provides the necessary tools for this: breaks, check-ins, breakout sessions. These create space to evaluate options, realign positions, and reassess the BATNA.

The role of counsel in mediation

The tension

Clients typically hand over a dispute to their lawyers to remove it from day-to-day operations. In litigation, counsel takes control, structures the case, develops the arguments, and drives the process. When mediation is introduced at that stage, that logic partially reverses: the client is expected to step back in and take part in the negotiate.

The earlier mediation is introduced, the less significant this shift. Decision-makers are still engaged, positions are not yet entrenched. The further a matter has progressed, the more visible the tension becomes. The client has stepped back, the process is driven by counsel, positions have been developed and defended. When mediation is suggested at that stage, it is often perceived not as an opportunity, but as an interruption to an ongoing process.

In practice, this creates role ambiguity: counsel remains in the lead, the position continues to be defended, and the client remains largely in the background, even though they are expected to decide. Mediation can then become a continuation of litigation in a different setting, with much of its potential left unused.

At that point, the function of counsel shifts. Not away from representing the client’s position, but towards enabling the client to make informed decisions. This is not a step back, but a different form of responsibility.

The value counsel adds in mediation

Counsel plays a critical role in preparation and set-up: ensuring that the right people are present and properly briefed. At an early stage, counsel often has the most complete understanding of the facts, interests, and procedural history, often more so than the mediator at that point. Bringing that knowledge into the process helps give it clearer direction from the outset.

As discussions move towards concrete options, the focus of the role shifts. Counsel keeps the negotiation space under review and relates potential solutions to the BATNA. They evaluate whether, and under which conditions, a settlement is preferable to continued litigation or arbitration, adjusting that view as the situation evolves. In practice, this translates into clear guidance: “This proposal falls within a reasonable range.” “If we decline, we face the following risks.” The decision remains with the client. Counsel ensures that it is taken on an informed basis.

At the same time, counsel provides the legal framing and structuring of what is being discussed. Are the proposed solutions legally sound and commercially workable? Counsel identifies legal constraints, refines approaches, and translates negotiated outcomes into implementable arrangements. Legal and commercial considerations intersect here: business relationships, planning certainty, reputation, and operational impact.

As the mediation comes to its conclusion, the solutions developed are translated into legally robust structures: payment mechanisms, security arrangements, escrow or staged models, adjustment clauses. This is where legal expertise in its traditional sense comes fully into play. Supporting implementation is part of that role: an agreement is only as strong as its ability to be carried through in practice.

Takeaway

Unclear role allocation leads to delays, additional procedural steps, and rising costs. Clearly defined roles are a prerequisite for making robust decisions in mediation in the first place. What remains open is how the mediator works within the session and what tools are available to guide parties towards a decision. This will be addressed in Part 4.