Settlement is Not Always the Desired Outcome

Over at Mediation Stuff, experienced litigator-cum-mediator John Lassey writes, The Goal of Mediation Is Not (Necessarily) Settlement.  He suggests that many would find this statement heretical.  I don’t. I could not agree more.

When I took my first mediation class, I heard someone suggest that the lawyer/mediators needed to learn how to stop being advocates for a client and become an advocate for “the deal.”  Eager to embrace my new profession, I initially thought that was interesting and profound.  But the more I mediate, the more I realize that this is bunk.

Like John says,

the primary goal of mediation of a tort case is knowledge, with settlement being a possible byproduct. The idea is to learn whether all sides are close in their thinking on the value of the case. If they are, settlement is likely to follow; if they are not — and cannot be convinced to change — settlement is not likely to follow.

Like John, I tend to go through an initial phase of analyzing whether the parties are in the same range, ballpark, zip code, bracket.   If the parties seem to be dealing in the here and now, rather than in Bizzaro world, the mediation generally proceeds.  While I use “all my powers, and all my skills” to help the parties work out a settlement when the parties are close (or at least receptive to settlement), I’ve learned to back off when the parties aren’t.  I still work hard to get the parties to exchange relevant information, to “reality test” their assumptions, to try to find some common ground to work from, but at a certain point, if the parties are thousands of dollars apart, or unwilling to move from their opinion on ultimate liability, settlement is simply not an option.  Then it seems like I’m beating a dead horse, or milking the parties for another hour of fee, and neither is right.