Originally from:

AAA Handbook on Mediation - Third Edition

ADDRESSING THE REAL BARRIERS 
TO SETTLEMENT: THE KEY TO EFFECTIVE MEDIATION OF BUSINESS DISPUTES

Laurence M. Johnson

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.