Once a stubborn party has articulated the reasons for its intransigence, and the validity of those reasons has been rebutted or confirmed, it is almost certain that negotiations will have more room in which to progress. When new facts or law become available, most clients are willing to accept their advocate's counsel and adjust their settlement postures with reason. For the advocate whose goal is to be both zealous and efficient, this process can make a material difference. Rather, mediation may best be viewed as a process that can work in tandem with litigation, regulating and disciplining the litigation genie, and sometimes getting it back into the bottle altogether. A business dispute can, and often does, shuttle between mediation and litigation, using the mediation forum for negotiation and the litigation forum to gather facts and clarify the law, so that negotiations can progress.
Mediation does produce settlements at a high rate.
Mediation can be most effective, however, when settlement is viewed not as an end in itself, but as the natural by-product of having clear choices presented to the client. If clarity is increased, so that clients can decide more intelligently how to proceed, settlement will likely result. But the grail of settlement should not divert attention from the usefulness of mediation as a tool for effective client counseling. Lawyers who use mediation this way have performed their duties as the zealous advocate well, settlement or not. In the business world, such a goal is unrealistic at best and a waste of time at worst.