Last month I received a letter from a lawyer who had appeared in a case that had just settled. He had said at the beginning of the mediation that he had little hope of settling because the other side was more interested in litigating. He thanked me for persisting to get the case resolved.
The lesson in this letter is that it is easy to misread the opposition. The attitudes that they display often create a perception that the parties are “too far apart.” Or, one or both parties may feel that the other side is being “unreasonable.”
When approaching a mediation parties should think about what lies beneath the surface. What is the other side thinking that they haven’t disclosed yet? Are the numbers artificially high or low? The answer is usually yes.
The common refrains about being too far apart explain why mediation is needed. If the two sides were close, they would probably settle the case on their own. The reason why they need a mediator is that they are polarized.
