What if the Parties Don’t Agree on the Facts?

Tips to Keep Civil Litigation Mediations Moving

In mediations—whether involving contracts, employment, personal injury, or business disputes—progress can grind to a halt when parties don’t agree on the facts.

One side insists “It happened this way.”
The other says, “Absolutely not.”

At that point, many attorneys and parties feel stuck. But mediation doesn’t require factual agreement—it requires good decision-making. Here are five strategies to keep the process on track when facts are contested.

1. Acknowledge That Different Perceptions Are Normal

Litigated disputes often stem from misunderstandings, incomplete records, or selective memories. Conflicting accounts don’t necessarily signal deception—they’re often a function of perspective. Recognizing this can reduce unproductive accusations and open space for negotiation.

2. Ask: What Does This Disagreement Represent?

Is the factual disagreement really about legal liability—or about something deeper like reputation, professional integrity, or public perception? Uncovering the underlying concerns can help attorneys and mediators shift from argument to problem-solving.

3. Document Both Versions—Then Pivot

If neither party is willing to concede, consider writing down both versions. Treat them as competing narratives rather than legal determinations. This can defuse the “you must admit I’m right” dynamic and refocus attention on resolution rather than validation.

4. Focus on Risk and Cost, Not Certainty

Compare the expected court outcome and likely costs—including litigation fatigue, reputational exposure, and lost opportunity costs. Emphasize that even a “winning” trial may cost more than a strategic settlement.

5. Reframe the Purpose of Mediation

Remind parties: this isn’t trial prep. They don’t need to prove anything today. The goal is to evaluate options and make informed choices that reflect legal, financial, and intangible interests. Good decisions are possible even when the facts are in dispute.

Bottom Line:

When litigants can’t agree on the facts, don’t get stuck trying to resolve history.
Help them decide how much that history is worth—and whether it’s worth continuing the fight.