By Eric Gillett
A few years ago, I had to file a motion asking a court to order my opponent to attend mediation. Despite the rules obligating each side to engage in dispute resolution before trial, my opponent simply refused. After the court ordered the mediation, we arrived at Plaintiff’s attorney’s office, sat in his conference room, and waited for the mediator to meet with us. When she did, her news was not encouraging. She advised that Plaintiff’s counsel would only accept the demand set out in his mediation brief and was unwilling to entertain any counteroffers. Without detailing the next few hours, the case did not settle that day at mediation. But it did settle before trial for less than Plaintiff’s opening demand.
Every trial lawyer and claims professional has encountered the same mediation scenario: you come prepared, present a reasoned opening position, signal a willingness to compromise, and support your numbers with facts, law, and risk analysis. The other side responds with an opening demand—or offer—and then simply… stops. No movement. No counter-logic. No engagement beyond repeating their number. This certainly isn’t the norm, but it happens enough that a discussion is warranted.
This article offers a practical, step-by-step playbook for dealing with a non-moving opponent in mediation, whether you represent the plaintiff or the defendant. The goal is not to “win” the mediation, but to avoid common mistakes, preserve leverage, and maximize the chances that the impasse breaks—either at the mediation or later.
Step One: Assume the Freeze Is Strategic, Not Personal
The first mistake lawyers make is treating rigid positioning as irrational or disrespectful. In reality, most hard-line openings are driven by internal constraints rather than bad faith.
Common drivers include:
- Authority caps set by insurers, reinsurers, or management committees, or those who need to authorize movement are not actually attending the mediation live or remotely.
- Precedent anxiety, particularly for institutional defendants.
- Trial posture signaling, where movement is perceived as weakness.
- Poor internal alignment, where the person at mediation lacks real flexibility or sufficient control over his client.
- Delay leverage, especially when discovery or dispositive motions loom.
As counsel, your job is not to fix these constraints—that’s the mediator’s role—but to avoid responding emotionally or over-conceding in an effort to “get things moving.”
Step Two: Stop Chasing Movement with Unilateral Concessions
When the other side does not move, the instinct—especially for defense counsel and claims professionals—is to make another concession “to show reasonableness.” This is usually a mistake.
Repeated unilateral movement teaches the immobile party three lessons:
- They do not need to engage to extract value.
- Time works in their favor.
- Your bottom line is likely far from where you claim it is.
If you are going to move, do it once, do it deliberately, and make clear—through the mediator—that additional movement without reciprocity is unlikely to advance resolution.
A well-timed pause is often more powerful than another number.
Step Three: Convert Your Offer into Information, Not a Concession
One effective tactic is reframing your compromised position as informational rather than negotiable.
Instead of saying, “this is our next offer,” have the mediator explain privately:
“This number reflects how we value risk today, assuming certain factual and legal exposures. It’s intended to show how they see the case—not to invite further one-sided movement.”
This reframing accomplishes several things:
- It preserves your credibility without inviting serial concessions.
- It shifts the psychological burden back to the immobile party.
- It helps decision-makers on the other side justify eventual movement internally.
For insurers, this is particularly useful when adjusting committees or reinsurers are listening in only second-hand.
Step Four: Force the Discussion Away from Numbers
When numbers stall, continuing to argue over them rarely helps. Trial lawyers should redirect the conversation toward decision consequences, not valuation disagreements.
Effective discussion pivots include:
- Trial timelines (“What does this case realistically look like eighteen months from now?”)
- Budget exposure (litigation costs, expert fees, internal disruption)
- Appeal risk (even after a favorable verdict)
- Witness and evidence volatility or credibility
- Reputational or business impacts
The mediator should be doing this work—but counsel can tee it up by identifying pressure points the mediator can explore in caucus.
Notably, this approach avoids telling the other side they are “wrong,” which almost always entrenches positions further.
Step Five: Use Conditional Movement (or Don’t Move at All)
If movement is necessary, make it conditional.
Examples include:
- “We can consider moving if there is reciprocal movement.”
- “Further authority depends on whether liability exposure is acknowledged.”
- “Any movement assumes resolution today.”
- Entering into brackets to explore settlement ranges.
- Asking for a mediator’s proposal.
Conditionality signals seriousness without escalation. It also protects insurers from documenting concessions that appear arbitrary or unjustified if mediation fails.
If the other side still does not engage, the absence of movement creates a clean record: resolution failed due to impasse, not lack of participation.
Step Six: Let the Mediator Carry the Weight
Trial lawyers often sabotage effective mediators by over-advocating in caucus. Once it’s clear one side will not move, your role is no longer persuasion—it’s positioning.
Communicate clearly to the mediator:
- Where your true stopping point is (confidentially).
- Which arguments resonate internally with your client or carrier.
- What will cause your client to walk versus pause and reassess.
Then let the mediator apply pressure where it belongs. Repeating arguments directly to an entrenched opponent rarely moves the needle.
Step Seven: Know When to Stop and Why That’s Not Failure
A mediation that ends without agreement is not automatically unsuccessful—particularly when one party refuses to compromise.
From a litigation and insurance perspective, a “failed” mediation can still:
- Clarify the opponent’s real valuation.
- Educate decision-makers on both sides.
- Strengthen your trial posture.
- Justify later fee petitions or cost-
shifting arguments.
- Set the stage for post-motion or pre-trial settlement.
Importantly, walking away at the right moment preserves leverage. The party who refused to move often becomes more flexible once real litigation risk materializes.
Final Thoughts: Discipline Beats Desperation
For trial lawyers and insurers, the most dangerous response to a non-moving opponent is desperation disguised as cooperation. Mediation rewards preparation, discipline, and patience—not performative flexibility.
When one side refuses to compromise, your objective should shift from “closing the deal” to protecting position, preserving credibility, and strengthening leverage. Do that well, and the resolution often comes later—on better terms, and with less frustration.
In the case I mentioned above, we settled for less than the opening demand. Plaintiff’s attorney’s posturing was a tactic meant to demonstrate immobility during mediation in the hope that the defendant would cave and pay the demand. It took several weeks to gain momentum, but eventually Plaintiff’s counsel engaged in the typical back and forth we expect, which led to a reasonable resolution.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. Further information is available at www.gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
