A recent case I was involved in as mediator bears scrutiny and reveals an important point about mediation in general.
Two parties in a personal injury case wanted to mediate with a private mediator. Going into the mediation both sides took reasonable positions, and resolution seemed like it was going to be easy.
However, both sides thereafter would make only small moves toward any ground where settlement was possible and the process was headed to impasse. The mediator recognized that something had to be done to save the process.
Going to the Defendant, the mediator asked what they were really willing to pay, as the moves up to that point had not narrowed down a range. It was stressed that they did not have to reveal this information and that it would be kept confidential if they did.
Upon hearing the number, the mediator knew that the case could potentially be settled. A strategy was proposed to send a clearer signal to the Plaintiff as to the amount that the case could be settled for and settlement was quickly reached.
Why did the case play out this way? The issue is trust. Each side was fearful that their own concessions would be too great and that the other side would not reciprocate, leaving them in a position of either ending in impasse or making a settlement outside their intended range.
The potential impasse was avoided when one side was willing to trust the mediator and give a clear signal through the amount offered that they were actually willing to get to “yes.”
Sometimes the advantage in choosing a private mediator is to get someone the parties trust enough to reveal their evaluation of a case and trust that the mediator will protect the integrity of the process.