In March, 2007 Judge Waddington published his electronic text containing summaries and review of  cases decided by the U.S. Supreme Court, all Circuit Courts, California Supreme Court and Court of Appeals (published and non-published) on arbitration and ADR.  Also included are the California Rules of Court, Referees and Temporary Judges. Log on to www.arbitrationadr.com for further information about this subscribers-only internet publication available at home or office on your computer.  No pocket parts or supplements  Edited weekly.

This Section on Arbitration and ADR will include unpublished materials on a variety of topics written by Judge Waddington but available to anyone interested in the subject of ADR.

Mediating the Litigated Case

Hailed as sine qua non of dispute resolution, mediation has generated books, articles and guides identifying the process of successfully bringing adverse parties together and achieving closure to their dispute. Formulae are proposed, skills identified and the art of dispute resolution studied and analyzed. But we know from experience that the ability to resolve disputes is directly related to the context of the disagreement. Outside the contours of a legal system, i.e., extra-judicial mediation, a mediator must resolve disputes unaccompanied by critical factors present in mediating a litigated case. The role of pleading, discovery, motions, evidence, jury instructions, and a pending trial combine to dramatically change the mediation landscape. Mediation, in the context of litigation, does not necessarily mirror techniques invoked to resolve extra-judicial disputes. In a [two] word[s], mediation of the litigated case is sui generis.
Paradoxically, litigation facilitates mediation. Trials, verdicts and enforceable judgments compel “closure” of the dispute. Parties in extra-judicial conflict who do not confront “closure” in trial, verdict and judgment lack incentive to settle their differences, and, in the absence of an enforceable provision for resolution, continue their dispute unabatedly. Accordingly, adverse parties can exchange diatribes, hurl insults, and engage in violent conduct with impunity, fearing no consequence-unless the “consequence” is force. In the United States, the judicial system exists to provide a neutral, albeit compulsory, forum for resolution of disputes. Despite public criticism of frivolous lawsuits and a proclivity of American people to involve courts in tenuous claims, litigation compels all parties to resolve their dispute voluntarily or a jury/ judge will impose resolution. The prospect of “closure” in a trial forces the parties to confront the reality of proving the merits of their respective claims to a group of strangers (jurors) as distinct from convincing friends or partisans who have already rendered their personal verdict.
The key to successful mediation of the litigated case is selection by counsel of the optimum time to discuss potential for resolution of a dispute. Litigation does not stand still, its contours ebb and flow. Pleadings are amended, new parties served, bankruptcies occur, case law or legislation changes, one or more parties settle, motions denied or granted. Many factors are beyond control of the parties but compel counsel to constantly reappraise a case. For counsel, whether the reasons are external to the case or internal to it, factoring in factual or legal risk is an art practiced during the maturity of litigation. If mediation is arbitrarily compelled, the timing ignores the delicate balance that triggers the decision to attempt resolution.
Unless sophisticated in the litigation process, the vast majority of parties are indifferent to procedural or substantive law, trial strategy or the legal process in general. But lawyers cannot ignore the risks posed by applicable statutory and decisional law. During mediation, identifying relevant law can convert irresolution into resolution. Increased use of mediation requires lawyers not only to master the negotiation process per se, but to incorporate their legal acumen and transfer that skill to their clients by explaining legal vulnerability. Once counsel elect mediation, the plaintiff must preliminarily commit to consider resolution at less than full value of a case; for the defendant, to pay more than defense costs or minimal value. Coming to the mediation table to parrot previous demands and resist any negotiation wastes client and counsel time. Capitulation is not required but neither is stonewalling productive.

I. The Rhetorical Clash
Conceptually, mediation and litigation are worlds apart. The adversarial nature of litigation is accentuated by its rhetoric, procedural framework and substantive rules. The caption of a case which inserts “v.” as a grammatical surrogate for “versus” confirms and intensifies the clash of interests between parties. And despite liberalized pleading to discourage extensive allegations of misconduct, Complaints are frequently couched in accusatory language, Answers deny responsibility and invoke “defenses,” or a Cross Complaint levels accusations of wrongdoing committed by the complaining party. Discovery proceeds in deposition by questioning parties or witnesses, frequently duplicating “cross examination,” a process freighted with implications of confrontation. Interrogatories demand answers, documents are compelled for examination, and requests for admissions seek concessions. Trials are conducted in formal public courts before a jury who must render a “decision” and presided over by a judge who serves, in part, as a “referee.” Verdicts are translated by the media into “wins” and “losses” and characterized by parties respectively as “victory” or “injustice.”
In contrast, mediation dispenses with the adversarial model, modifies the structure of litigation, and invites parties to participate in a “resolution” mode achieved by a process of negotiation. Informality of the proceedings, a conversational tone, a narrative history by the parties and an opportunity for counsel and client to re-evaluate the facts (or law) are the hallmarks of mediation. Mediators attempt to minimize the combative language of litigation and its contentious tone in order to reshape the process of resolving a dispute. Privacy, confidentiality and the absence of public exposure in mediation contribute to facilitating communication and defusing hostility.
Counsel and clients who elect mediation in litigated cases shift to participation in a process markedly different from the language of pleading or the compulsion of pre-trial discovery and, unlike extra-judicial disputes, frequently conducted in the shadow of a pending
trial. Although mediation employs fluidity sharply contrasting with rules of pleading, discovery and trial, the mediator and counsel cannot ignore relevant procedural, substantive and evidential strictures of litigation impacting the negotiating process. Counsel remain in the adversarial role of litigation but engage in the conciliatory dimension of mediation.

II. Mediating the Litigated Case
For lawyers in litigation, or poised on the advent of litigation, the entire spectrum of procedural and substantive law, evidence and remedies cabin the boundaries of the dispute and affect its potential resolution within limitations imposed by statutory and case law guidelines. For example, in attempting to settle medical malpractice litigation, counsel are legislatively limited by statute capping general damages; or, a plaintiff in multi party litigation who settles in good faith with one defendant eliminates that party from its participation-and financial contribution at trial among other defendants; or, personal injury/wrongful death cases require apportionment of non-economic damages among multiple tortfeasors. Unless parties resolve their case in mediation, these legal principles will apply at trial.
Whether these limitations are appropriate is beyond the scope of this article, but the mere presence of these restrictions impacts the mediation process in the context of litigation. As a result, resolution of disputes in mediating litigated cases does not always allow creative, imaginative or unbounded solutions available in other contexts. The artificial constructs of decisional and statutory law affect resolution even though the law is perceived as inequitable.
A client, immersed in the rhetoric of litigation which emphasizes the adversarial, and who equates “winning” to vindication and “losing” to injustice, must emotionally adjust to the prospect of “compromise.” From the point of view of plaintiffs, “compromise” may connote a concession, or surrendering fair entitlement to recompense for an injury or loss; for the defendant, the word represents extraction of an unwarranted financial contribution. Mediation inherently requires reevaluation of litigation as the appropriate forum for resolution of a dispute, but confronted with the alternative of win-lose in jury trials, parties often consider the flexibility of a settlement.
The perspective of litigator and mediator in the process of mediating a litigated case obviously differs as a consequence of their respective roles. Advocates present arguments which attempt to cast their case in the best light, whereas mediators evaluate relative strengths and weaknesses of both sides in a quest for vulnerability likely to surface at an eventual trial. Many commentators on mediation recommend certain techniques they have successfully employed to achieve settlement. Mastering these skills is unquestionably important, but a mediator invariably transcends individual styles by attempting to overcome the subjective perceptions of attorney and client in order to objectively identify key elements of litigation played out against the backdrop of trial. In that context, the mediator can identify the reality of: evidence inadmissable on grounds of hearsay, privilege, or other statutory or case law restrictions; weak corroboration of testimony; insufficient evidence of loss, harm or breach; impeachment of a witness by prior inconsistent statements; other significant evidentiary issues affecting liability or damages.
Hovering in the background of cases in litigation is the prospect of a jury trial (or court trial or arbitration) and, unlike extra-judicial mediation, this element is injected into the resolution process. Pending trial, a myriad of factors not necessarily related to the merits of the case swirl through the minds of parties. In some instances, the plaintiff is in desperate financial straits, cannot endure the delay in securing a court for trial and accepts settlement of litigation in exchange for immediate payment; or, may accept settlement at a sum less than potential value of the case rather than risk the uncertainty of a jury verdict. Conversely, a defendant may seek to avoid negative publicity of a trial and elect the privacy of mediation; or an insurance carrier prefers to close a file of questionable merit to forestall potential bad faith litigation. These factors, and innumerable others, are often concealed from the other party (although frequently inferred) but trigger motivation to settle, not litigate, based on issues collateral to the evidence.
A recent California Supreme Court decision lends a sense of urgency to one of the advantages of mediating the litigated case and avoiding trial: statutorily mandated confidentiality. In NBC Subsidiary (KNBC-TV) Inc. v. Sup. Ct. (1999) 20 Cal.4th 1178, the Justices drastically limited the power of civil trial judges to impose restrictions on media access to the courtroom. Practitioners may arguably express concern that this decision opens the door to disclosure of the discovery process and its attendant public revelation of deposition transcripts, answers to interrogatories and other discovery requests not necessarily included in court files unless contested. In contrast, the California Legislature has provided protection to all parties against disclosure of conversations and revelation of documents occurring during the mediation process. Evidence Code Section 1115 recites statutory confirmation of confidentiality during mediation. A recent California Rule of Court severely limits non-disclosure of court approved settlements. No such requirement exists in voluntary mediation.

III. Goals of Mediation in Litigation
What is the purpose of mediation in the context of litigation? The superficial answer is to achieve “settlement” and avoid trial. Undoubtedly this objective holds true in the majority of cases, but the focus of the mediator is not so much on the goal as the means to achieve it. We can identify three major elements:
A. Information
Depositions, interrogatories, requests for production of documents and requests for admissions are routine litigation methods of learning the factual basis of broadly worded language in Complaints, Answers and Cross Complaints. In California, liberalized pleading invites- even compels-discovery. For example, a multiple count Complaint in a negligence cause of action for personal injury does not necessarily reveal whether plaintiff is focusing on breach of ordinary duty or statutory duty; causation; foreseeability; liability or damages; or punitive damages. Typical Answers to a Complaint often contain innumerable affirmative defenses broadly phrased without extensive factual support and combined with a general denial.
Depositions, by definition, subject the deponent to probing and unsettling questions. The quasi courtroom cross-examination mode of a deposition with its structured questions/answers format, occasionally generating unprofessional verbal wrangling among lawyers or parties, reinforces the aura of a contest. Mediation, whether initiated before, or even after discovery, can dilute the adversarial relationship indigenous to depositions by substituting an informal exchange of information between parties and counsel. In mediation, parties speak narratively, historically and chronologically. During this recitation, attorneys can filter legally irrelevant facts, inadmissable evidence or unsupported opinion. In addition, counsel can frequently dispense with time-consuming preparation of interrogatories and answers or requests for production of documents. Instead, both parties develop the theory of their case for mutual benefit in the presence of a mediator, and these respective presentations can narrow the focus of the litigation, reveal underlying motives or afford an opportunity for the parties to “ventilate.” Indisputably, in mediation, counsel cannot obtain detailed answers to questions asked in depositions nor is a transcript prepared for possible impeachment of deponent at trial. But the goal of mediation is to obtain sufficient information to settle, not litigate.
The principal purpose of discovery and mediation is identical: obtaining information. Some lawyers resist mediation, asserting that it offers the opportunity for “free discovery.” The response to this objection is threefold: First, in the average case, aside from lack of detailed facts gleaned during mediation, counsel will obtain substantially the same information as in formal discovery. An exception for complex or multiple party litigation may exist initially but subsequent discovery may yield enough information to warrant mediation. Second, with information obtained from all sides, a mediator can provide parties with a perspective on the nature and scope of the dispute and its potential for success at trial, simultaneously exploring the alternative of resolution; Third, intractable discovery disputes are not only fractious, costly and likely to intensify the adversarial dimension.
To the extent depositions probe more deeply or reveal potential weakness in a case, close questioning of a deponent may undoubtedly yield benefits. Other reasons may justify the need for a deposition prior to trial and beneficially serve as a prelude to mediation. Even if parties are committed to litigation, a constantly evolving pre-trial legal and factual scenario invites mediation as a continuing alternative.
1. Liability
Governing the mediation boundaries are allegations of liability and consequent damages asserted in the Complaint, the parties allegedly responsible and their legal capacity as litigants. Critical in assessing potential liability is determination of the legal characterization of parties, i.e., agents, independent contractors, joint venturers, employees, assignees, third party beneficiaries. In some cases the defendant challenges the legal status of a party as a mixed question of law by filing a motion for summary judgment or signals an intent to file a motion in limine at trial. If this motion is dispositive, the risk to all parties is substantial and in many cases this factor will stimulate resolution.
In a series of cases, the California Supreme Court has reduced exposure of a party to liability. The court has ruled on third party criminal conduct; general contractors and their employees; the scope of Workers Compensation; malpractice in arbitration; assumption of risk in sports contests. Application of these cases to different fact patterns continues to exist but the uncertainty creates a basis for resolution.
The informality of mediation may obscure the importance of causes of action pled in the Complaint (Amended) or Cross Complaint. Demurrers sustained, motions to strike granted or denied, and rulings on summary judgment or summary adjudication motions may narrow or dispose of specific counts and, indirectly, affect the entire case. Or, the court may have stricken counts indirectly weakening the remaining causes of action. This basic legal information, maturing after the original filing of the Complaint, affects evidence, trial strategy and jury instructions. The mediator can privately evaluate liability with counsel and assess whether the legal position of the parties has been strengthened or weakened by procedural court rulings.
Aside from discovery rulings and admissibility of evidence, jury instructions can play an important role in mediation as in trial. California case law is summarized in the concise BAJI tracking Court of Appeals and Supreme Court decisions affecting liability (and damages). Although jury instructions appear mundane and premature at mediation, these legal tools expand or restrict liability in conformity with statutory and case law.
2. Damages
If liability is in dispute, the parties may never discuss damages, or, the amount of damages a defendant agrees to pay is subordinated. If liability is undisputed, plaintiff is likely to demand an amount of damages reflecting a stronger position in trial. BAJI instructions identify the scope of damages reasonably relating to harm or loss, and mediation offers an opportunity for counsel to identify evidence in support of each item, i.e., medical expenses, past and future economic loss, inability of vocational rehabilitation to restore plaintiff to pre-injury condition. In contract, similar elements are outlined in BAJI.
In tort litigation, knowledge of insurance coverage, deductible provisions in the policy, exclusions, or availability of self-insurance is indispensable. In litigation with multiple parties, counsel for plaintiff may consider the advisability of settling with one of several parties, a decision affecting potential exposure of damages to other defendants. If the defendant is insured, the mediation segues into a different posture entirely, discussed, infra, particularly if the insurer has filed a reservation of rights or identifies covered and uncovered claims. The threat of “bad faith” litigation is frequently present but the California Supreme Court has reduced exposure to potential third party filings. The plaintiff must also factor in a reduction of total recovery if the employer has liened Worker Compensation claims, a Health Care provider has filed medical liens, or, if counsel is on contingency.
For the defendant, the threat of punitive damages may compel concessions otherwise rejected unless counsel regards the risk as insignificant or the claim specious. Insurance coverage does not include coverage for punitive damages, thereby placing defendant personally at risk. If plaintiff seeks to impose liability against a corporate employer who ratified the wrongful conduct of an employee, the statute requires malicious, oppressive or fraudulent conduct.
Armed with this information, the mediator can explain to each side in advance of trial the factual and legal impediments to, or confirmation of, liability, damages and the risks they confront in each category. Lawyers are frequently aware of this information, but the mediator can either validate, encourage reconsideration, or disagree. More important, the mediator can share that analysis with clients. It is the assessment of this information from a stranger to the litigation but familiar with the litigation process, whether accepted or rejected by counsel, that provides benefit to all participants.
B. Evaluation
1. Parties
Obtaining information or historical fact, discussed above, is enhanced by affording opposing counsel an opportunity to observe and listen to the other party, or witnesses, and assess their individual or cumulative potential appeal to a jury. “Who” the parties are, i.e., their age, business, profession, or trade, level of education, demeanor, the ability to recall and recollect, relationship with the other party, dominate litigation. If the plaintiff will testify to the majority of evidence at trial, counsel for defendant can evaluate this principle prospective witness in conjunction with knowledge of any additional or corroborating evidence. If the party is deceased or otherwise unavailable to testify, the character issue diminishes and counsel rely on expert witnesses, documentary evidence or corroborating testimony from other witnesses. A dramatic difference in recovery for damages is evidenced by the elements the jury may consider in evaluating the “worth” of the plaintiff in wrongful death litigation. The absence of a party from litigation, whether plaintiff, defendant, or witness is a key factor in evaluating the strength of a case.
The identity of the defendant, whether an individual or otherwise, is equally important in litigation, particularly if the witness will represent a business entity in trial either as an officer, agent or employee. Despite the cautionary BAJI instruction to treat business entities and individuals equally, juries do not always regard this instruction as relevant in their deliberations. An injured plaintiff typically engenders more appeal to a jury than a major corporate defendant with “deep pocket” potential even if liability is insubstantial. Or, an insurance company specifically named as a defendant is often considered a negative jury factor, overshadowing the testimony of an articulate and personable agent or employee.
In a surprising number of cases, attorneys agree on the general impression a party is likely to present to a jury, but a strong legal case of liability does not assure a verdict if the witness displays any unfavorable characteristics. A jury deliberates privately and is under no obligation to publicly confirm a verdict based on “personality” rather than evidence. Mediation affords the mediator an opportunity to privately inform counsel, who may need no confirmation, that the character of a party is questionable. This assessment does not necessarily require an intensive deposition. From a defense perspective in tort litigation, mediation also enables an insurance carrier (s) to evaluate the case by achieving insight into the character of the plaintiff as contrasted with information contained in a file.
2. Witnesses
The unambiguous intention of discovery rules is compulsory pre trial disclosure of witnesses to prevent “trial by ambush,” and, if necessary, take their depositions. The time spent to prepare, schedule and conduct depositions exacts a fiscal toll and inconveniences parties and witnesses. Because witnesses infrequently attend mediation, counsel can eliminate these factors by summarizing their expected testimony to the mediator for evaluation (analogizing to an “offer of proof”). Discounting the obvious inability to assess the character of an absent witness, the summary may nevertheless reveal legal disability or disclose issues of relevance, materiality or inadmissable evidence. Or, confirm and validate statements elicited from a party. “Who” these witnesses are, their character and prospective testimony, are factors equally important as identity of a party.
Frequently, a party will attempt to bolster a case by referring to corroborating evidence. A mediator can tactfully request the names of witnesses who will testify to these facts and their availability at trial, whether voluntarily or by compulsion of subpoena. But a witness who corroborates a party does not necessarily resolve ambiguities in a case or improve the chance of success in litigation. Just as the persona of a plaintiff or defendant is crucial, the relationship of other witnesses to the party is equally important. Often a relative, friend, parent, or business associate qualifies as a prospective witness but subject to potential impeachment based on an arguable bias.
Other witness problems may emerge: a third party absent from the jurisdiction and not subject to subpoena; a former employee no longer a reliable witness; an angry divorced spouse or estranged child; a previously deposed third party whose location is unknown; death or serious disability of a witness. In some cases, a neutral witness is unimpressive or reluctant to become involved in litigation. Unavailability of a corroborating witness, of itself, can impact the strength of litigation. Assessment of witnesses, their relationship to the party, absence or availability, the nature and scope of their testimony, are all critical in evaluating whether to litigate.
3. Expert Witnesses
In addition to their pre trial expenses and fees for testifying at trial, expert witnesses pose practical problems. A treating doctor in personal injury cases often lacks courtroom experience, is reluctant to testify, and insists on appearing in court at a convenient time. In contrast, physicians who testify regularly as experts and familiar with trial strategy must concede to a jury on cross-examination that they have previously appeared as witnesses on behalf of plaintiff or defense, are retained in the instant case, and expect compensation. Obviously these concessions subject them to allegations of bias. In varying degrees, counsel expect their experts to contradict each other. The case may elide from plaintiff v. defendant to expert v. expert, influencing the jury accordingly.
Mediation does not always overcome reimbursement of medical expenses but a review of medical reports prepared by expert witnesses and reviewed by the mediator and parties can tentatively evaluate the extent of the claim and the costs incurred prior to incurring additional trial expense. Expert witnesses infrequently attend mediation and in some cases a deposition is necessary. Reports, in conjunction with all the evidence presented at the mediation, can assist all parties in evaluating the totality of the case.
4. Multiple Parties
Extra-judicial mediation involving numerous parties compels a mediator to consider a variety of conflicting opinions frequently based on personal preference or emotion rather than adherence to legal theory. In litigation, multiple defendants are usually represented by counsel familiar with legal procedure and cognizant of conflicts potentially subjecting their clients to exposure or loss. Regardless of the number of defendants, or their legal relationship to each other, a Complaint alleging multiple parties caused a loss may increase the prospect of infighting and improve the strength of an otherwise weak plaintiff’s case. Conversely, the combined financial resources of multiple parties create a formidable risk to the ability of the plaintiff to finance litigation.
In the absence of indemnity issues, multiple defendants may attempt to shift responsibility among themselves or share the loss in reduced proportions. Although defendants may decide to mount a united front, the individual interests of each party surmount the joint defense. Despite a common commitment to defend, ethical obligations compel counsel to primarily represent an individual client and subordinate the general defense.
In multi-party cases, historical fact and evaluation of witnesses are equally important, but the presence of additional litigants may introduce indemnity issues evidenced by cross-complaints filed by defendants against each other. If indemnity agreements exist among defendants, their collective interest in avoiding liability may be affected. The language of the indemnity agreement is key in determining whether the contract includes a specific party and defines the scope of coverage afforded.
Indemnity agreements, a settlement by one party defendant, or absence of a party all potentially distort the litigation and mediation process. But mediation offers the opportunity to compromise, finessing any of these factors, including the “empty chair” at trial when the absence of a party speaks louder than presence.
C. Strengths and Weaknesses
Assessing the relative merits of plaintiff and defense cases can involve an infinite variety of factual and legal issues in conjunction with obtaining information, evaluating parties and determining availability of witnesses. Added to the mix is the nature of the litigation, i.e., tort, contract, property, employment, probate, family law, and the expanding arena of intellectual property. Although contract, property and probate law remain relatively stable, the volatility of tort law and maturing employment law may impinge options in mediation. In addition to examples noted earlier, the California Supreme Court, restricted remedies in the Consumer Legal Remedies Act, and reduced the threat of third party “bad faith” litigation. Legislation (by Initiative) mandates proportionate non-economic tort damages awarded against multiple tortfeasors in personal injury, property damage and wrongful death litigation, and the Legislature has strengthened procedural requirements for proof of punitive damages.
Even in cases of unquestioned liability, the amount of damages is frequently in contention. In tort, the parties dispute general damages; in contract, mitigation is argued; in property, the amount of loss is in disagreement. In resolving the intangibles of a case, i.e., in tort, the absence of “objective” evidence of general damages or in contract the calculation of lost profits, counsel for plaintiff and defense offer widely differing perspectives. Obtaining a “third opinion” from a mediator can encourage the parties to re-evaluate their case, particularly if the mediator focuses on objective facts which counsel must introduce at trial by admissible evidence. The goal of the mediator is to eliminate subjective evaluation and substitute an objective appraisal of evidence.
Aside from intensive legal assessment of a case, the mediator cannot ignore the emotional dimension of the parties. An unstructured and chronological recital of facts related by the participants reveals more than narrative history. The listening process in mediation offers an opportunity for a party to ventilate pain, enmity, damage, or a menu of emotional factors generated by the facts. Transferring emotion into legal analysis is an important element in the litigated case. The mediator must not only apply facts, or their absence, to the relevant legal theory in the pleadings, discovery rulings and evidence, but tactfully discount personal opinion, unsupported conclusions and irrelevant historical fact regarded by the parties as important but inadmissable as evidence at trial.

IV. Chemistry of Mediation
The American judicial system divides along legal lines paralleling our social culture. Aside from Constitutional law impacting litigation, state and federal law familiar to all lawyers enforces mutual promises executed between parties in contract, compensates victims of intentional and negligent conduct in tort, and prohibits or limits impermissible intrusions or use of personal and real property. Contract, tort and property all emanate from the democratic tradition protecting individual rights, and, more recently, non-union employment has emerged as an increasingly important protected right. Each of these categories involves a different mix of relationships between the parties, a distinct social environment and, for the mediator, a unique “chemistry.”
Family law and probate implicate personal relationships marked by significant emotional
investment. The entire range of human emotions is on review in family law, the past history between the parties dominating the present. Absent the potential of a jury trial, family law mediation can resemble extra-judicial mediation with the prospect of endless disagreements between the parties and an inability to obtain “closure.” These disputes require the mediator to exercise practical skills not within the ambit of this article.
In other categories of tort litigation, public anger dominates the more conventional private world of civil litigation, and specific legal and factual disputes between the parties are ignored or subordinated in emotion. In civil rights litigation or actions filed against law enforcement officers or agencies, regardless of the merits of the case, plaintiffs focus on allegations of past injustice ostensibly manifested in the present. Mediation of these litigated cases is deflected by perceptions not easily erased.
A. Contract
Except for consumer contracts, breach of a negotiated commercial contract occurs between parties who know each other, or through agents who agreed to a business relationship. Breach of a contractual promise, couched in litigation language, imports more than mundane causes of action alleging non performance of terms. The purely “business” dimension of the relationship between parties is damaged, in some cases beyond repair or severely compromised, and breach may also impose hardship on third parties who depend upon performance of the breaching party. But the essence of breach is the moral issue in failing to keep a promise, a loss of faith or trust.
The law attempts to ignore moral rationales under the guise of more neutral words, and not without some justification. A broken promise is labeled a “breach,” and “damages” characterized as the secular equivalent of punishment. And by dividing damages into categories, i.e., consequential, benefit of the bargain, or loss of good will, the law compels the jury to identify specific losses rather than applying a variety of moral convictions among jurors. The moral issue is not eliminated, merely replaced objectively.
Parties will undoubtedly avoid or ignore any reference to morality, although not necessarily oblivious to this dimension, focusing instead on the pragmatic effect of the breach. Perhaps parties are outwardly indifferent to the moral issue even if alerted to its existence, yet it underlies every breach of contract. Re-characterizing the breach as a loss of “trust,” a close rhetorical ally of “morality,” might be more suitable. A mediator who ignores the moral (trust) issue, at least to some extent, may forfeit the opportunity for settlement in those cases where its appearance is more easily recognized.
The world of business, whether consisting of global conglomerates or local entrepreneurs, regularly attempts to solicit customers, venturers, and vendors in whom a contracting party has confidence. An entity embroiled in litigation may not qualify as a reliable source of “trust” regardless of the merits of the underlying case. Resolution of a contractual dispute in mediation may not entirely eliminate damage to business reputation but surely avoids front page press exposure or a column in the business section reporting litigation.
On a parallel level, business disputes causing a financial loss to plaintiffs equates to fraud in their mind rather than nonperformance of a contract. Anger at financial loss caused by another party approximates harm incurred in personal injury. To an entrepreneur, the importance of “business” and its damage or loss is not as apparent as physical injury, but can represent damage to economic survival equivalent to disfigurement. For many people, “work” is their life and business loss is disabling. The desire for punishment in addition to compensation for loss is strong. In this context, emotion transcends the mediation similar to tort, employment and family law.
B. Tort
If contract includes breach of promise, tort incorporates breach of duty. American courts have struggled to define “duty” for decades, and appellate judges in California have attempted to establish bright lines enabling juries to understand this word and its applicable scope. In tort law, negligence presupposes an injury legally caused by an act of one person who breaches a moral responsibility, i.e., “duty,” to avoid injuring another person. Legal and moral duties parallel each other in most cases but not exclusively. The moral duty to assist another injured person does not equate with a legal duty, absent other circumstances.
Unlike contracts written between parties acquainted with each other, directly or indirectly, torts frequently involve conduct between strangers. In contract, despite mutual disagreement, the parties may elect to maintain their business relationship but strangers in tort are usually disinterested in any future contact and seek resolution of an isolated event. In mediation, contract and tort invest the parties with different goals and means of achievement. Whether the parties intend to maintain a relationship, sever it, or are indifferent to it, shapes the course of litigation and mediation alike. The course of tort mediation also differs from contract as manifested by the role of insurance coverage.
In other categories, parties are strangers to each other but secondary interests are at stake. A plaintiff may seek vindication of personal reputation in slander or libel litigation to remove the stigma of an allegedly defamatory statement potentially impeding career development or jeopardizing personal relationships. Similarly for the defendant in product defect litigation, the outcome of a trial to validate business reputation is as important as personal reputation of parties in a contract dispute. A business entity must decide whether to risk an adverse verdict that will significantly affect future sales. A car manufacturer having invested heavily in its product may decide that litigation will confirm the safety of a vehicle and impart confidence in future customers. But mediation is unlikely to succeed in this context because the result will not necessarily prevent litigation involving identical vehicles. “Closure” between the parties, in the conventional sense, is illusory, i.e., the “product” becomes the defendant, not an individual or entity. In addition, mass distribution of allegedly identical defective products invites class action litigation, transforming the “chemistry” of litigation significantly. Yet class actions do open the door to mediation on a wider scale by combining all plaintiffs into a single class for potential certification, settlement and “closure.”
In contrast to contract litigation evidenced by nonperformance or failure to properly perform an agreement (but could include inability to perform, i.e., bankruptcy) causing a loss of “trust,” negligently inflicted injury may engender remorse in the person whose conduct inflicted pain and suffering on an otherwise innocent person. But the role of the injuring party may differ in mediation and litigation. If the injuring party is insured, a claims representative “stands in” for the defendant during mediation. Lacking personal involvement, the claims representative cannot act as an agent for the defendant to express an apology or sympathize with the injured party who might conceivably moderate financial demands in response to an expression of remorse. But in trial, when confronted by a jury whose task it is to judge, and personal responsibility at stake, the defendant/injuring party must testify (if available) and is more likely to minimize the injury or attempt to shift responsibility to the plaintiff.
If parties have prior association with each other, their relationship may dominate the mediation. Classic examples are family law, probate or employment. Allegations of professional negligence create mixed emotions, the parties having exchanged confidential information. Embarrassment in the knowledge that one party has imparted private information to another, or engaged in questionable conduct in conjunction with a breach of trust, impacts the mediation differently than among strangers. Patient and doctor, client and lawyer, client and therapist, all exemplify this category.
C. Property
In property disputes, the parties may have either maintained a relationship with each other, contractual or personal, or are strangers as in some species of tort. Landlord-tenant disputes, initially based on contract (lease), may also involve the right to continuing tenancy. This “chemistry” differs substantially from arguments between adjoining landowners disputing property lines, “view” lines, easements or encroachments. Neighbors often attempt to validate their right in futuro as superior to that of another and initiate litigation to impose a perpetual reminder of vindication if they are successful. Frequently the dominant theme in these disputes is the demand for a judicial determination to validate not only a legal right but to confirm personal power. In contrast, tenants in disputes with landlords fear eviction and loss of housing, an economic issue unrelated to ego.
One common property dispute is an allegation by a disappointed buyer of residential real estate who contends the seller has concealed a defect in the house. Buyers either legitimately identify a defect in the property, are guilty of “buyers’ remorse,” or an attempt to extract leverage. Legislation requires the seller to prepare a detailed statement in escrow disclosing known defects or conditions and most residential real estate contracts now require mediation of any dispute between buyer and seller. A mutually executed arbitration clause in the contract mandates arbitration if mediation is unsuccessful. Resolution of the dispute in arbitration replaces litigation and enforces “closure.”
Aside from the merits of the dispute, broker(s) are not ordinarily a party to the mediation/arbitration agreement, although the parties may assert their culpability. If mediation between buyer and seller is unsuccessful, the broker continues to remain outside the process and subject only to litigation. Frequently, a buyer and seller who achieve successful accord in mediation will abandon efforts to compel agent responsibility and forego litigation.
A sales transaction between buyer and seller of residential real property is founded on contract, but the parties, having retained agents, may have never met each other. Crafting a solution to resolve a single failed transaction between residential buyer and seller of a residence unacquainted with each other, differs sharply from mediating a dispute between a long standing and often acrimonious personal relationship among neighbors whose proximity to each other will continue. Purchase and sale of residential real property is a combination of contract and property law, but a mediator cannot ignore the personal dimension of the transaction. Transformation of the word “house” to “home” connotes an emotional sea change for parties. Failure of a buyer to acquire a “new home,” or, inability of a seller to expend proceeds languishing in escrow, engenders strong feelings of resentment between parties unknown to each other, i.e., “constructive acquaintances.” In this context, “property” sheds its legal character and adds a broad panoply of emotions.
D. Employment
Employment litigation, previously dormant, has escalated in courtroom dockets. Fueled by federal and state legislation conferring legal rights on employees (non-union) in the workplace, the parties stoke the combustible embers of race, gender, age and disability with allegations of economic loss. Writings or correspondence introduced in contract litigation to establish breach, or, in tort, evidence of X-rays, MRIs and doctor bills submitted to establish injury, or, in property disputes, providing documents or photographs to vindicate rights, is often absent in employment disputes. In some categories, expert witnesses are nonexistent, corroborating witnesses emotionally aligned with respective parties, and credibility difficult to assess. Family law without the family. A mediator must frequently construct settlement from mutually contradictory oral statements exchanged between incensed and uncompromising parties or witnesses.
Unless one party to an employment dispute insists on litigation and its concomitant publicity, participants can select mediation with the specific intent of seeking privacy and confidentiality afforded by statute. Publicly exposing intimate or embarrassing details to a jury in sexual harassment cases is not an attractive option to most parties. In employment litigation, the opportunity in mediation to “ventilate” offers a significant alternative to litigating in a public forum. Despite these factors, counsel for plaintiffs in gender, race, age or disability litigation regard jurors as more sympathetic to an individual if an employer is the defendant. Employers, understandably concerned about this factor, will often recommend mediation. Because the parties may remain in a working relationship with each other pre-trial, the option of suggesting alternative remedies in mediation finesses the “win or lose” alternative of litigation and provides an accelerated resolution.
Emotional damage alleged in employment litigation, dissimilar to objective physical injury, is amorphous, subjective and varied. Mental anguish ranges from humiliation, embarrassment and outrage to terror. In some cases, the conduct of a defendant is indefensible; in others, fault is ascribed to a vindictive or avaricious plaintiff. Fashioning causes of action, establishing substantive rules and procedural standards in this context is challenging. What kind of evidence constitutes legally cognizable “hostility” in a working environment? What conduct qualifies as “harassing?”
Employment disputes engender a “chemistry” altogether different from conventional civil law. The volatility of the parties, their personal relationship and the nature of conduct alleged, replicate family law superimposed on labor law. But each of these other two legal categories, equally incendiary as employment law, offers some measure of closure. In labor law, aside from general disagreement on wages and benefits which affects all workers, individual grievances are severed from the collective bargaining agreement between management and labor and resolved separately. The grievance/arbitration procedure affords closure to an individual worker without jeopardizing the main contract between management and labor. Employment law in the non-union context lacks the formal grievance procedure in collective bargaining contracts, and parties may continue working in the same environment with no prospect of resolution absent an internal complaint process. Employers have responded by providing resolution options in the workplace similar to grievance procedures in labor arbitration, subsequently documenting any investigation for use at arbitration or trial.
Employment law is further complicated by objective “differences” between parties based on history or culture. The legacy of slavery manifests itself not only in skin color but perception of racial inferiority. Women, formerly assigned the role of homemaker and child bearer, suffer from a male rejection of their ability to perform comparable work. The elderly experience patronizing exclusion based solely on age, and the disabled rejected as incapable. Legislation attempting to level this playing field, severely criticized as unjustified favoritism, has created political backlash potentially surfacing among jurors during trial or in jury deliberations.
In each of these categories, the best intentioned jurors cannot always escape a cultural, historical or personal opinion affecting their verdict. Voir dire is unlikely to expose concealed bias, particularly in the public forum of a courtroom. Despite these factors, plaintiffs have succeeded in obtaining significant verdicts, but in the atmosphere of an employment dispute, counsel and their clients engage in a difficult decision evaluating “risk” in public jury trials. And their choice is not always between mediation and litigation, but mediation and arbitration.
Employment law at the federal and state level continues to evolve, creating an aura of legal uncertainty for lawyers. Employers increasingly require waiver of jury as a condition of employment, and recent California Supreme Court decisional law has validated arbitration as an alternative to litigation conditioned upon a quasi procedural due process. The legal risk in a maturing employment dispute world is substantial but statutory and case law complexity in employment litigation is undoubtedly irrelevant to parties unable to view the dispute as other than infliction of emotional damage. The mediator can explain legal uncertainty to the parties, as distinct from factual disputes, introducing an additional reason for re-evaluating litigation.
E. Family law
Family law is more closely allied to employment law but uncoupled from the workplace. The emotional damage of divorce is subordinated to, or incorporated into, objective evidence of money, assets, pensions and finance in general. Children become the battleground but courts can nevertheless impose objective and concrete conditions on custody and visitation rights. “Closure” is not universally achieved in the traditional sense by divorce if the judgment provides for a continuing relationship, in some degree, between the parties. The prospect of subsequent proceedings, particularly if children or money are involved, is common.
F. Insurance
Forests have been savaged litigating insurance law, the issues ranging from interpretation of basic policy language to coverage of mixed covered and uncovered claims. In the context of mediation, the claims adjuster replaces the defendant, thereby effectively eliminating the insured from the risk of trial and exposure to potential financial loss-unless the insurer has notified the insured of a reservation of rights or plaintiff has sought punitive damages. In one sense, removal of defendant’s personal financial investment in the outcome of litigation avoids the emotional dimension, but in another sense replaces it with an unemotional financial evaluation of cost calculated by an insurer. If multiple insurers are potentially liable for coverage, or the issue is contingent upon determining the act that “triggers” coverage, the mediation will encompass not only liability and damages but determining who will bear the loss and in what proportion.
The difference between counsel for plaintiff and a claims representative in evaluation of a case lies in their perspective. The former has interviewed an individual and the latter works from a cold file. Although defense counsel may attend a deposition of the plaintiff, the claims representative ordinarily does not. Mediation affords a claims representative the opportunity to evaluate the plaintiff for the first time and form a tentative impression of the individual as a potential witness. A mediator can also summarize legal and factual strengths to assist evaluation.
No mediation is successful if any of the participants lack authority to settle. Plaintiffs are entitled to know policy coverage but must consider deductible or self insurance.
G. Attorney fees
Underlying all litigation, and without reference to issues of liability, damages or the nature of the litigation, is the role of attorney fees. In tort, attorneys representing plaintiffs may accept a percentage of any judgment or settlement. Customarily, counsel will accept a reduced percentage if the case settles rather than litigates. The difference between the two figures is a relevant factor in addition to the “risk factor” of litigation. But fees are dominant in all categories of litigation, attributable to the cost of preparation for trial and the trial itself. Regardless of the prevailing party in litigation, fees and costs can reduce a judgement for the plaintiff or increase payment by the defendant. Clients are understandably concerned at escalating costs, whether in tort, contract, property or employment.
H. Summary
Parties invest varying degrees of emotion in all litigation regardless of its nature. The emotional component, its degree, the relationship among multiple parties for plaintiff and defendant, and the role of non-parties in various categories of litigation create a shifting chemistry for a mediator. In some cases a loss is personally devastating: breach of contract which decimates a business; personal injury permanently impairing a life; loss or damage of irreplaceable property; mental injury and subsequent fear; allegations of professional incompetence. When a legally cognizable act by one person causes loss, damage or harm to the mental or physical health of another, or challenges personal perception of “wholeness,” litigation is a judicial attempt at rectification. Money damages are universally acknowledged as inadequate recompense but the adversarial nature of litigation assures resentment if one party denies responsibility in a public forum, whether rightly or wrongly, or challenges the extent of the loss. Mediation requires compromise, also resulting occasionally in dismay and anger, and settlement money will not necessarily assuage emotion. But the risk of further emotional loss from an unsatisfactory verdict is reduced.

V. Power
Mediation frequently includes the role of power-economic, social, and personal. Disproportionate economic power in the form of an impecunious plaintiff versus a business entity prepared to spend unlimited funds places the former at extreme disadvantage. In personal injury litigation, a plaintiff experiencing financial hardship, escalating medical costs and potential surgery, unable to afford the delay of litigation, is under intense pressure to settle. Comparable examples occur in any category of litigation. But “power” does not always inure to the benefit of a defendant. Juries are capable of reallocating power in verdicts immune from reprisal or intimidation.
From a defense perspective, a client may refuse to pay damages to a plaintiff deemed personally unworthy or greedily attempting to reap an unwarranted financial harvest. By approving defense costs, including substantial attorney fees, any individual or business entity possessing fiscal strength may participate in mediation only to validate their opinion that plaintiff is undeserving. Depending on the allegations in the Complaint, the mediator can improve the potential for a successful mediation by probing legal weak points in the defense, perhaps accentuating the articulate nature of plaintiff, noting the presence of cross-complaints (indemnity or seeking affirmative relief), commenting on the disadvantage of trying the case in a public court or the potential exposure of defendant to punitive damages.
Conversely, must determine whether the plaintiff’s monetary demand is realistic or unreasonable. Mediators can bring their legal background to bear in discussing with plaintiff the strength of available defenses, the impact of an adverse summary judgment, potential inadequate damage awards, an uncollectible judgment or lack of insurance coverage.
The mediator, in searching for equalizing a power imbalance, can identify rules of evidence, substantive law or procedure impairing the defense or favoring the plaintiff. But focusing only on the evidence and its apparent weakness is not always a dependable gauge for analysis of a predictable jury verdict. Serious injury, damage, loss or harm in any legal category can compensate for a weak case. Examples abound of plaintiffs who present marginal cases at trial but receive substantial monetary damages despite formidable and wealthy defendants.
In addition to the amalgam of elements discussed above, counsel must factor in “juror uncertainty,” the wild card affecting the “power” factor. Or, statutory and Constitutional limits on peremptory challenges to jurors may limit the scope of questioning and result in an unsatisfactory jury pool for either plaintiff or defendant. In some cases, the location of trial itself can cause reevaluation of litigation if counsel conclude that jury panels tend to favor plaintiff or defendant.
The role of insurance, or the absence of it, including policy limits, umbrella or excess policies, or reservation of rights can significantly alter power relationships. Constantly alert to the potential for fraud, an insurance carrier reviewing a cold file may conclude the plaintiff is malingering or inflating medical bills. Flexing its financial muscle, the carrier offers no settlement, but the claims adjuster may reconsider upon meeting the plaintiff during mediation. Although counsel for plaintiff risks exposing an unsympathetic party, a single deposition will reveal the same result.

VI. Relationships
A. Counsel
Noted above are the distinctions between relationship of parties as they relate to causes of action or type of dispute. Equally important in litigation are relationships between attorneys. In metropolitan counties, counsel for plaintiff and defense may never have met during the course of litigation, communicating with each other by letters and faxes. In an urban legal culture, the familiar “paper trail” is deemed essential to record history of the litigation process. Unfortunately, communications between attorneys can assume a contentious tone and the letter writing campaign becomes an exchange of insults rather than communication. Whether the parties agree to mediation, are compelled to attend by the court, or mandated by a mediation clause in a contract, the air is already poisoned. The mediator must undertake reconciliation between lawyers before attempting resolution of the litigation.
If attorneys know each other from previous litigation, their prior experience will influence their current relationship. Good or bad. For the professional, losses in trial or during the motion process are inevitable, and as long as the other side behaved responsibly, counsel are likely to have a respectful relationship. If not, resentment lingers.
One of the advantages of professional organizations is the opportunity for lawyers who share similar interests to meet on neutral ground and overcome anonymity in the profession. Not all lawyers are destined to become friends, or necessarily “like” each other. Nevertheless, their acquaintance with each other often facilitates communication and opens the door to reasonable discussion. Mediating a dispute between two lawyers who understand the process and conduct themselves with civility differs vastly from counsel who have generated an acrimonious relationship and traded accusations of misconduct.
Mediation is a collaborative process requiring all parties and counsel to shed “posturing,” share insights, and communicate face to face without the mask of anonymity indigenous to telephone conversation or letter. If the goal of mediation is settlement, the mediator can encourage counsel to focus on the merits of the litigation and subordinate their personality conflicts. In some cases, failure of communication is the culprit. But in all cases where counsel have agreed to mediation, each takes a significant ameliorative step in reducing rancor. If nothing else, the mediator can deflect hostility or minimize the effect of a particularly contentious personal point. Successful mediators can infuse civility into the process by adopting a tone of conciliation and a demeanor emphasizing resolution.
B. Attorney and Client
Preparation for mediation can vary according to the relationship between attorney and client. In advising a client who has previously participated in mediation, settlement conferences, arbitration or trial, attorneys can minimize explanation of process, but to someone unfamiliar with litigation, counsel must invest sufficient time to discuss alternatives to litigation. Every case incorporates its own “chemistry,” differing factually, legally or strategically. A pre-mediation conference with an experienced client may justifiably skimp on discussing procedure but not on “risk” of trial. Candor is essential, and a client who withholds important information endangers successful mediation.
Apprehensive of losing favor with a valued client or under orders to conciliate, counsel cannot always control the contours of the mediation. To avoid jeopardizing the attorney-client relationship, counsel can privately inform the mediator of legal or factual vulnerability in the case. The mediator can explain these negative factors to the client, deflecting resentment toward counsel. In this way, the mediator delivers the bad news directly, suggesting the client confirm that assessment independently with counsel. In addition, by speaking directly to the client, a tactful mediator can outline the role of a jury who may resolve credibility conflicts based on considerations other than facts, a task the attorney is reluctant to undertake.
For unsophisticated clients, counsel must not only explain the mediation process but also emphasize the necessity of candor when speaking with the mediator. Successful mediators understand the importance of gaining client trust and the value of “listening” without interruption or challenge. The opportunity of a party to ventilate anger, hostility or pain to a mediator is an important ingredient of successful mediation. Whether an harassed employee, an injured automobile driver or defrauded employer, all need to express their emotions. The cathartic process can open the heart and mind to explanation and reason. A mediator who proceeds too swiftly, even if settlement is reasonably obvious, risks an unsuccessful mediation.
Attorneys walk a fine line between a desire to resolve litigation or elect trial. Expressing a willingness to mediate does not infer weakness or imply capitulation. Mediation is increasingly routine in litigation, or mandatory in some cases, and counsel should not assume the adversarial relationship is eliminated, only redirected toward a mutually approved result that avoids the uncertainty of trial.
C. Non-parties
The assumption that parties themselves are responsible for the ultimate outcome of mediation in a litigated case is often misguided. In some cases, hostility between parties prevents active communication between them, but in others, non-parties are dominant: the spouse who must be consulted; the parent of a minor; a close friend; a business associate. If the insurance carrier has notified the insured of a reservation of rights, or coverage is in dispute, the character of the mediation is changed dramatically and third parties are often unable to understand the complicated world of insurance.
If non-parties accompany a party to mediation, the mediator must assess that relationship to determine whether their presence manifests an intent to participate in the mediation or to provide moral support. Depending on the role and depth of influence of non-parties, mediation affords them a level of inclusion-good or bad-absent in litigation. The mere presence of a friend, relative, spouse or companion may alleviate the stress of a party. If appropriate, the mediator can offer private caucuses for consultation and participation of non-parties to facilitate resolution. In litigation, a non-party is usually relegated to the role of spectator isolated from the trial.
A mediator must tread carefully in order to avoid imposing unwarranted pressure on a party who must consult a third party. To resolve a dispute, the mediator can adjust the focus of the mediation in order to secure consent of a third party. A third party absent from the mediation and conferring only by telephone is not a successful formula for resolution.
Not to be omitted are insurance carriers, and the mediator must also determine their level of influence. In some cases, claims representatives defer to counsel; in others, they dominate the discussion. If the insurer has provided coverage, the insured is relegated to an observer at best, and frequently absent from the mediation unless in cases requiring consent of the policy holder. If covered and uncovered claims are involved, the insured is at risk if the insurer reserves the right not to indemnify claims excluded from policy coverage or uncovered. Or, if Cumis counsel appear, the mediator can expect conflict among all parties. The worst case scenario is a claims representative available only by telephone. Not through any fault of their own are they working out of a New York or Chicago office, but absence of their personal presence complicates the effective face to face work of the mediator.

VII. Pre-trial
Depending on the pleadings and the process of discovery, the entire world of litigation is in play and pre-trial rulings can alter trial and mediation strategy. In some cases, an overruled demurrer will prevent a motion in limine or judgment on the pleadings on the same issue; a successful motion to strike punitive damages ensures a verdict on compensatory damages only; denial-or grant-of a summary judgment on one issue may affect the remaining causes of action; discovery sanctions excluding evidence may impair the strength of a case. The list is endless.
Procedural history is important to the mediator and all parties. Pre-trial rulings, whether admitting or excluding evidence, directly limit or expand verdict potential. Although the legal contours of a case are important to counsel, parties do not always understand that dimension. A mediator must explain that trials are affected by rules excluding factual issues a party deems important.
Mediation ordered by the court, or required as a condition of future contractual arbitration lacks the incentive offered by voluntary mediation. The essence of mediation is an assumption that both parties are amenable to a negotiated settlement. Absent that state of mind, and ordered involuntarily to mediation, the prospect for resolution is negligible and closely resembles extra-legal mediation. Both sides realize the process is an empty gesture offering no closure and an absence of risk. In those circumstances, the mediator can only offer suggestions or comments that may subsequently benefit both parties.
Court ordered mediation is undoubtedly a well intentioned judicial mechanism. But once all counsel voluntarily elect mediation, the parties signal the prospect of resolution. For the plaintiff: at some number less than full value; for the defendant: more that payment of defense costs or “nuisance” value. Arriving at the mediation table to parrot previous demands or offers and resisting any negotiation wastes time of client and counsel. Capitulation is not required, but neither is stonewalling productive.
The increasing use of judicially ordered arbitration undoubtedly resolves numerous cases. If a party rejects an arbitration award and files trial de novo, each side approaches any subsequent mediation cognizant of the amount awarded (or not awarded). If the arbitration award is “high” and defendant files de novo, the plaintiff concludes a third party has already established the value of the case; if the award is “low,” and plaintiff files de novo, defendant assumes the award was appropriate. Although these opposite perspectives predispose the parties to their personal evaluation of the case, the award does mark the parameters of the mediation. Within these boundaries, parties can evaluate the “risk” factor of trial and its additional litigation costs.
Many parties in litigation assume a successful outcome of their case is a certainty. Nothing is more certain than the uncertainty of a jury. And, as litigation proceeds toward trial, plaintiffs or defendants unfamiliar with the process often underestimate expenses. Attorney fees paid hourly or on contingency, the fees of expert witnesses, deposition costs, discovery disputes and expense of preparing exhibits take their financial toll. Or, counsel for plaintiff must consider deducting a portion of a prospective judgment to satisfy liens imposed by health care providers or employers. The purpose of mediation is practical as well as realistic: settlement ends the escalating expense and, frequently, the emotional price.

VIII. External Factors
Successful mediation of the litigated case more often than not consists of a menu of factors extraneous to its monetary value. Delay in trial, cost of litigation, uncertainty of result, a desire to end the tribulation of discovery, apprehension of speaking in public, a desire to “get it over with,” all combine to create an apprehensive mental environment for the average party understandably nervous and perhaps intimidated. Mediation is useful in encouraging parties to moderate their respective positions and achieve closure. For those parties who commit themselves to trial, exposure to the intrinsic value of a case in mediation may cause reevaluation. Relevant evidence excluded by motion, impeachment of a witness by facts unknown prior to trial, the death of a crucial witness, a critical adverse appellate decision, all individually or cumulatively may affect issues of liability or damages. It is the [“looming] omnipresence” of “trial,” at some point prior to or during litigation, that triggers mediation and stimulates resolution-and closure.
Mediation is not always successful in immediate settlement but the process alone can educate counsel and parties, invite their reconsideration and enhance the prospect of subsequent resolution. Settlement is rarely possible unless both parties consider the potential for resolution realistic. At some point in the continuum of litigation, the opportunity to consider mediation occurs, whether fueled by escalating costs, the prospect of a looming dispositive motion, inability to locate a crucial witness or an infinite variety of factual or legal problems,
Criticism of trial court delay is valid in some cases, but often the maturing and time-consuming process of litigation induce parties to reexamine their commitment to trial, if not directly, certainly indirectly. As the time approaches for trial and the unavoidable necessity of testifying looms, reality sets in. Mediation exists to allow ventilation of frustration and anger unacceptable in a courtroom where parties attempt to mask emotions. In some cases, the effort is unsuccessful, leaving to a jury of strangers the task of determining questionable integrity.