The desire to settle during mediation can be mutual, essentially balanced and shared, or highly unbalanced or asymmetric. As a mediator, I want to find out which side more strongly feels the need to settle.
I seek to press upon the side least desirous of settling. I try to move a party or their lawyer off a previously held belief or prediction. Sometimes I get ammunition from the other side or make up an argument or point on my own.
I try to poke holes, reality test, revisit the economics of litigation, discuss exit strategies or the lack thereof, and always remind litigants that trial happens only one percent of the time.
The value of the point scored with a dart in private caucus is not merely a function of the specific gravity of the new information. The impact of the adverse information increases in proportion to the pre-existing desire to settle which operates like as a crosswind on a golf shot. When the litigant is told to consider a new or greater problem or concern, the crosswind of settlement desire amplifies the impact of the adverse information conveyed.
Suppose you believe your client has more reasons to settle than the other side. Do you disclose that desire to the mediator or pretend like that’s not really so? If you tell me (or I can discern) your client’s settlement desire is high and asymmetric because they desperately need to settle, I will spend more time with the other side trying to convince them that today is their best opportunity to get the case resolved on good terms.
If I know you are highly motivated to settle, then you are a “friend” of the process, and my work needs to take place in the other room. Stated differently, I have to defeat the strongest enemy of the deal. So, there are two options: First, be candid and tell the mediator you need to settle in the hope he or she works the parties in the other room.
Alternatively, negotiate as if you do not feel the crosswind of settlement desire (when you really do) in the hope of driving a better bargain, but also increasing the risk of an impasse. Each choice has pros and cons, proof again that mediation advocacy is a curious combination of trust, risk assessment, and performance art.