I took a short break recently—hope you had a chance to recharge too. During that time, I found myself playing pickleball. Now, let’s get this out of the way: I’ve always been loyal to tennis. It’s been my sport for years. So picking up a pickleball paddle feels… let’s say questionable. Almost like I’m betraying my roots. (Almost kidding.)
Here’s what surprised me about pickleball: the ball didn’t bounce as high as I would normally expect it to. Every time was just… different. Maybe it’s my tennis instincts, or maybe that’s just the nature of the game. Either way, it just wasn’t what I expected. But, in order to keep the rally going, I had to adjust. That simple moment reminded me a lot of mediation.
We often walk into mediations with expectations; how the other side will behave, what kind of offers will come, how the negotiation will unfold… And then—just like on the pickleball court—things don’t bounce quite the way you thought they would.
So, how do you manage an unexpected “bounce”? The key is to stay flexible. Adapt your approach. Play what’s in front of you. Here’s what that can look like in practice:
1. That First Offer Throws You
You walk into the mediation with an “anchor point” in mind, and the first offer is either far below expectations or significantly (and surprisingly) higher than what was discussed beforehand. Either way, don’t let it throw you. There could be reasons for the sudden, unexpected change: new information, a shift in strategy, or a deliberate move to take control of the tone. No matter the reason, don’t allow a surprise to be a deal-breaker. Stick to your plan, explore the rationale, and keep things moving.
2. “No Openings, Please”
You’re ready to give your opening remarks, and opposing counsel says, “We don’t want to do openings.”
Before you push back, take a moment to ask why. Sometimes, skipping the opening is the best way to keep a client calm or prevent positional digging-in. Or maybe there’s a timing issue, and leaving out openings allows for more time for negotiation if both positions are already understood. Or, maybe there’s just nothing new to be said.
If skipping your opening statement doesn’t hurt your ability to convey key points or build momentum, consider rolling with it. Strategic flexibility is part of the game.
3. Key Documents Are Missing – But They Still Want to Proceed
You discover a critical report or disclosure hasn’t been provided, but the parties still want to move ahead and refer to it during discussions.
It’s frustrating, especially when you’ve prepared based on the assumption that everything would be on the table. But it’s not necessarily “Game Over” for the day. If the mediation continues, be clear that your offers are based only on the information actually available.
You can acknowledge the reference to the missing material without validating it, and adjust your position accordingly. Transparency and realism can keep the process productive, even when some pieces are still in motion.
4. You’re Out of Time
You’ve booked a half-day for your mediation, and now time is running out, but a settlement feels within reach. Saying “time’s up” doesn’t have to be a hard stop on progress!
Don’t rush the final stages if you can avoid it. Check if everyone’s able to extend, or to schedule a continuation of the mediation in a few days’ time. See if the parties are open to continuing discussions via email, or even if they’d be open to a brief telephone conference instead of an in-person or virtual session. Often, it’s that final push—just past your original stop time—where deals finally come together.
5. The Numbers Aren’t Moving
You’re deep into offers, and progress feels glacial. We’ve all been there, and it’s easy to get discouraged. Sometimes, for the opposing party, the early numbers are about managing internal expectations, or showing the client that they’ve “held firm.” If you can stay patient and keep the lines of communication open, you may see things shift once that groundwork is laid. Don’t panic! And don’t forget to keep working with your mediator; they may be able to help break these kinds of impasses while still keeping up appearances.
In mediation—as in pickleball—things don’t always bounce the way you expect. Success isn’t about forcing the game to go according to your plan, it’s about how well you respond when it doesn’t. Have you had moments in mediation where you had to quickly shift gears? What did you do? What helped (and what didn’t)? I’m always curious to hear how others adjust when the bounce is unexpected, so please feel free to leave a comment below.
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (416) 465-1886 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please click here, or contact Lacey Day at lacey@schnappmediation.com or call (416) 465-1886 / Toll-Free: 1-800-524-6967
