Originally from Dispute Resolution Journal

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A litigator and sometime mediator focuses on the mediation in which one or more participants say, “We’re just too far apart,” or “This is a case that just has to be tried.” He says it is wrong to give up. That is when the real work of the mediator begins and he offers guidance on that process.

The parties to a business litigation have been engaged in mediation for two days. There is a lot at stake and the issues are complicated.
Progress has been slow and the parties are not even close to an agreement. After the initial presentations by counsel in a joint session, the mediator held repeated breakout sessions with each side (private caucuses) in which he discussed with each party both the potential weaknesses in its case and the strengths in the opponent’s case. However, the parties have barely moved off of their initial positions. At the
end of the second full day of mediation, the mediator brought the parties back together in a joint session. Unexpectedly, counsel for the plaintiff says to the mediator, “I think we’re just too far apart.” Defense counsel concurs. “This is a case that just has to be tried,” he says. The mediator reluctantly agrees, ends the mediation, and wishes everyone well at trial.