Most mediators understand that if a case settles at mediation, it is because the parties recognized the benefits of putting their dispute and all of its inherent exposure to risk, and put runaway cost behind them.

Perhaps the attorneys analyzed the potential outcomes of a trial in a constructive and sensible way that resonated with their clients. The ranges of probable outcomes may have intersected with one another, providing their clients with comfort in making a difficult decision to settle the case. The mediator may have presented the perils of proceeding to trial in a persuasive and convincing fashion, which channeled the parties in to a settlement mode.

Settlement is achieved only after both sides to the controversy weigh the risks and rewards and make a business decision based on all of the known facts presented. The litigants may have decided to accept a compromise that was not totally satisfying, but the concessions were enough to avoid a date with a judge or jury. In any event, if the dispute was resolved, it was because the parties found a mutually agreeable resolution. This outcome cannot always be achieved. Parties to a dispute have concerns and issues that can interfere with a negotiated settlement.

Believe it or not, there are cases that cannot be resolved without a trial. I had one such case several years ago. A property owner had a small strip of property taken across the front of his property. The owner announced at the beginning of mediation that he had not obtained divine permission for him to sell the property. (Apparently, the permission had been obtained to purchase the property.) All of the participants at the mediation believed that, at some price, the owner would agree to a settlement to avoid a long, costly, valuation trial. Much money was offered to the owner. War stories and what if scenarios were discussed in attempts to convince the owner that the title to his property was already in the hands of the condemning authority and that the only remaining question was how much money he should receive for the land.

Despite all of the efforts expended that day at mediation, no one was ever going to convince the owner to accept a sum of money for his real estate. A jury trial was convened and the owner (representing himself throughout most of the trial) obtained an award for a lesser amount than was offered to him at mediation. When the trial was over, the owner was extremely satisfied. He had had his day in Court. Something remarkable happened during the trial to change the owner’s mind about selling the property, because after the trial he was exceptionally content.

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