Originally from Alternatives to the High Cost of Litigation

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The problem: Does confidence kill compromise?

The trend of counsel coming into the mediation room not as negotiators seeking compromise but rather as litigators and advocates has accelerated and will continued to do so in the near future.

Whether this is the effect of mandatory court or contractual mediation provisions or the “legalization” of the mediation forum is not clear to me. In the litigated case, the procedural impact has been for advocates to discount a joint session for fear it will polarize the parties further. Litigators see the joint session as “a waste of time,” since “everyone already knows” what the other participants are going to say or propose.