Standard advice tells every in-house team to try mediation before anything else. That advice holds often enough to become reflexive, and reflexive advice is exactly where good judgment stops. Certain disputes are structurally unsuited to mediation, whatever a step clause requires, or whatever the applicable procedural rule requires. Recognizing which ones early saves the one advantage mediation actually offers: timing.
Most managers and business owners who avoid a difficult conversation believe they are protecting the relationship. The evidence points in the other direction. Postponed conversations do not preserve the status quo. They accumulate dysfunction along a predictable curve, and by the time the conversation finally happens, the options available have narrowed considerably.
When in-house counsel select a mediator for a commercial dispute, the default approach is to check credentials, confirm neutrality, and move on. This misses the question that determines outcome: does this mediator have the commercial experience and substantive depth to do more than manage dialogue, and can they manage decision-makers who are not in the room?