That seems unsatisfactory. However, if the system allows a party to use the litigation to crush an opponent, the more powerful side may have no incentive to try mediation. Summary judgment often provides an effective resolution. However, while summary judgment may be right in law, a consensual deal might be more constructive, particularly if the parties want a relationship to be maintained. Most disputes are resolved without recourse to the Courts.
Parties negotiate settlements all the time.
Mediation is a facilitated negotiation and the mediator's skill is to get the parties to move further than they would have done on their own. If the time is right and the parties are prepared and willing, the mediator can make a deal happen. If the timing is wrong, parties should work out what should be done to try to achieve a settlement. However, if the will to settle is not there, ADR will fail. The article was published in Legal Week, July 2000.