(Marc J. Goldstein acts from time to time as a mediator in commercial arbitrations and commercial cases in state and federal courts in the United States. Beginning with this post, Arbitration Commentaries will occasionally be a forum for mediation commentaries as well.)
A not unusual dynamic in the mediation of complex cases is that one party insists, through the course of a full day of mediation or even multiple sessions, that it will not make a material move toward settlement, and that it would rather try the case, and yet the same party expresses willingness to continue the mediation and even to return to further sessions.
The situation presents several concerns for the mediator. One is the possibility that the party taking this position is using the mediation process merely as a vehicle to delay the progress of the case in court or in arbitration (assuming that some stay of proceedings pending mediation is in effect). It is a fair question to raise with that party in private session. However unless the circumstances are extreme, it should be for the other party to form a judgment about whether the mediation continues to be a productive route toward settlement. The mediator’s role is to help the parties toward settlement so long as they desire help — and to encourage them, with conviction but not coercion, that they should continue to desire the mediator’s help.
Another difficulty in the stubborn case arises when the parties (through counsel) openly welcome evaluative comments by the mediator, to be delivered in private session, but will not concede to the mediator in confidence any uncertainty about
the outcome on critical disputed issues of law or fact. Should the mediator suggest the futility of the exercise? Or be critical of the party for a perceived lack of candor? I think not.
For as long as the mediation is continuing with voluntary participation of parties effectively represented by counsel, the mediator should assume that his invited confidentially-expressed evaluative comments have an important impact on both sides, especially when the case is advanced and the mediator has become familiar with the key legal principles and essential disputed fact issues. Even with a mediator who enjoys great confidence from the parties, litigation counsel will understandably be reluctant in many cases to show outwardly any doubt of their positions on the merits.
But the mediator should persevere. Often there will be an advance on settlement terms without any accompanying explanation. And often the mediator will learn, at the conclusion of a difficult but successful session, that the party who was most aggressive defending its position against evaluative mediator input, is most grateful for the mediator’s determination in creating uncertainty about the outcome.