If a two-sided mediation fails, it is for one of four reasons:
But where there is time and money pressure, you will see that people in business do not litigate. They have better things to do. They have businesses to run. They mediate.
Business men and women cannot waste months in trial preparation and then a week or more in the trial itself. Then possibly more time on post-trial motions and appeals. Not to speak of attorney fees and court costs.
There are sales to make, contracts to sign, loans to secure.
Litigation is paralysis.
Then again, here’s another thing to look at. There may be more factors–you could label them “personality factors”–which will influence whether a business case (or any kind of case for that matter) can be settled by mediation, or by good attorneys in pretrial negotiations.
In cases with more than two parties, of course, the difficulties mitigating against settlement compound not arithmetically but geometrically. But with two parties only, I believe this is the situation:
So, as you look at the case you are in as a party litigant–or as you look at the case which you just received as mediator–what have you got? If you don’t have any of the bad “personality issues,” things are looking good. And if there is time and money pressure, things are looking even better.