I handled a mediation last month that reminded me how folks can sometimes lose sight of the power of the mediation process.
The mediation was in a litigated case and when I met with Plaintiff's counsel and client in private caucus I asked questions about the case. I use questions to help client's become educated about their case and to help them make decisions - either to settle or head to trial. This is the usual exploration of BATNA (best alternative to a negotiated settlement) and WATNA (worst alternative to a negotiated settlement). This is the usual stuff of mediating litigated cases and in this situation, Plaintiff's counsel would not acknowledge any problems with the case. Each time I raised a concern, it was batted away. We weren't making much progress and I sensed some frustration on the part of counsel.
The reminder came in the break room.
I was getting coffee when the Plaintiff's counsel walked in to do likewise. As we got our coffee, he expressed some concern that his client was not fully understanding the risks of going to trial. He could not understand why his client felt so strongly about the case and could I help him with his client. I commented that when I raised issues in the private caucus, you (the attorney) were not acknowledging them. I'm tossing softballs to help educate your client as to risks and you keep trying to hit the ball out of the park. Your client is believing what you say and is thus not willing to be flexible, even though you privately agree with some of the risks as noted by your frustration.
The attorney paused and thought for a moment and exclaimed "you're right!" I'm reinforcing the strengths of our case without acknowledging the weaknesses. With this light bulb going off we were able to move the process forward. His client came to understand the full scope of the case and eventually decided to settle.
This scenario has happened before and will likely happen again. For those representing folks in mediation, consider some of the mediator questions as softballs and sometimes you ought to swing and miss!