Some mediators view the parties’ attorneys as an obstacle to achieving a settlement. I do not find that approach constructive. While attorneys may seem to have a vested interest in preventing settlement, more often the attorneys are just trying to get the best possible result for their clients. Attorneys also generally recognize that settlement is more likely to achieve the best result for their clients than taking on the risks and costs of trial. Most attorneys are pretty cautious, and most do not like to lose. That means that the attorneys are generally well aware that there is a good chance they will not be able to get as favorable a result at trial as their client is hoping for. Also from a purely self-interested point of view, attorneys often recognize that unduly prolonging a case could jeopardize their fees, or at least their future business relationship with the client.
So when acting as a mediator, I count on the parties’ attorneys to act as a constructive part of the settlement process. I rely on the attorneys’ assessments of the strengths of their own case as a tool to help both sides assess the actual value of their case. I will often tell the parties that they should listen to their own lawyer’s evaluation of their chances at trial, and suggest that they ask their own lawyer how much it is going to cost to go to trial. Then I might suggest that they consider the other sides’ assessment of what will occur at trial, which their own attorney will generally agree has at least some basis in the realm of possibility. Sometimes the parties will then ask me what I think their chances are, and I generally respond that I agree with the collective wisdom of the other attorneys. In this way, everyone is working toward the same end, which is trying to find a resolution of the dispute that leaves both parties at least as well off as they would be by continuing to bear the costs and risks of the trial process.