Phillip McCallum
MEDIATOR AND ARBITRATOR

One of the most common—and costly—mistakes in mediation is treating every case the same. Not every dispute needs the same structure, the same agenda, or even the same format. Yet too often, mediation is approached as a one-size-fits-all event rather than a custom-designed process . The best mediations are not run. They are engineered . Why Process Design Matters Every case is different: Some are emotionally charged. Some are technically complex. Some involve many parties and decision-makers. Some are simple—but politically difficult. If you use the same mediation structure for all of them, you’re guaranteed to leave value on the table. Good process design reduces: Posturing Fatigue Mistrust And wasted time And increases: Decision quality Efficiency And the likelihood of resolution Key Questions That Should Shape the Process Before mediation day, I spend time answering questions like: Who actually has authority to settle? Do the parties need to hear each other—or be separated immediately? Is this a case about money, or about something else? Would pre-mediation calls help narrow issues? Is this better handled in person, virtual, or hybrid? The answers to these questions should determine the structure , not the other way around. Examples of Custom Process Design A multi-party case may need phased negotiations instead of one long day. A highly emotional case may benefit from early private sessions before any joint discussion. A technically complex dispute may require pre-mediation issue framing or expert summaries . A decision-maker-heavy case may need staggered attendance instead of everyone waiting all day. The Mediator’s Real Value A mediator’s value is not just in facilitating conversations . It’s in designing a process that makes good decisions possible . When the process fits the problem, people negotiate differently. They listen differently. They decide differently. Mediation should never feel like forcing a case into a template. The best results come when the process is built around the case—not when the case is forced into the process.

Most lawyers begin every case with the same goal: to serve their client’s best interests. But over time, in long and hard-fought litigation, something subtle—and dangerous—can happen. The case slowly stops being about the client’s problem and starts becoming about the lawyers’ battle. I see this more often than many would like to admit.  How It Happens Litigation is, by design, adversarial. It rewards: Strong positions Aggressive advocacy Winning motions And proving the other side wrong None of that is inherently bad. But when a case stretches on for months or years, it’s easy for the focus to shift from “What’s best for the client?” to: “We can’t give in now.” “After everything we’ve fought over?” “We’ve already invested too much.” At that point, sunk cost replaces strategy. The Warning Signs You can often tell when a case has crossed this line: Settlement discussions are framed as “concessions” instead of solutions Every issue becomes a matter of principle The emotional temperature in the room is higher than the financial one The client’s business or personal goals fade into the background When that happens, litigation stops being a tool and starts becoming the objective. The Real Cost Clients don’t measure success in motions won or briefs filed.They measure it in: Time Stress Money Disruption And uncertainty When a case becomes lawyer-centered instead of client-centered, those costs quietly multiply. The Mediator’s Role One of the most important roles of a mediator is to recenter the conversation : What does the client actually need? What problem are we trying to solve? What does a good decision look like today—not two years from now? Good mediation is not about declaring winners. It’s about helping people make clear, forward-looking decisions in imperfect circumstances. Final Thought Strong advocacy is essential.But the best lawyers never lose sight of who the case is really for. When litigation stays client-centered, resolution becomes possible.