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Mediating the Difficult Case

I am both a litigator and a mediator. In both of these roles, I am often told that there is absolutely no way that a case will settle in mediation. In my role as a litigator, my client is the one frequently telling me that the case will not settle, and as a mediator, it may be one or both of the attorneys making the same comments. 

However, in my experience, many of these “impossible to settle” or difficult cases do, in fact, settle.

There are no published statistics on how many cases actually settle at a mediation, but by anecdotal evidence and my own experience, it is clear that half or more of all mediated cases actually settle as a result of the mediation. Some mediators boast that their settlement figures are as high as 85 percent. Many of the cases that settle are those cases where someone in the process did not believe that the case could be settled.

I was recently involved in another “impossible to settle” case. I was skeptical that the case would settle at mediation, and my client was certain it would not. However, due in part to the skill of the mediator and due in part to the reality of the costs and risks associated with having a trial, the parties reached a settlement. None of the parties were completely satisfied with the outcome, but all of the parties felt that the mediation outcome was a better solution than continued litigation.

One of the primary benefits of mediation is the control that a party has over the outcome. When you go to trial, a party is at the complete mercy of the judge or jury as to the outcome. While the party can persuade and argue to try to convince the judge or jury to find in the party’s favor, the ultimate decision is not in the parties’ hands. 

With mediation, the party is able to control the outcome because no resolution can be reached without the party’s consent.