World-class mediators and masters of negotiation skills are also familiar with Getting to Yes.  It is thought of as the fountainhead of modern negotiation and mediation theory.  Getting to “no” is, fortunately, a rare situation at a mediation attended by well-prepared parties acting in good faith.

Many folks arrive at a mediation having achieved or feeling like they are on the brink of “getting to no.”  But the fact that the parties have agreed to attend mediation is a positive and a start towards getting to yes. The initial efforts of an experienced mediator at a mediation brings the parties from their “no” to “getting to know” more about their own position as well as about the other side’s case. That is a big first step towards the kind of realism about the whole picture that takes both sides to the next step of “getting to yes”.

Parties often come to mediations with entrenched and fixed views, but if they do act in good faith as is the one implicit requirement, promising to go and have the other side, as well as your own side, pay for mediation, a frank and open discussion should lead to an area of consensus “yes”.  It may be that the high end of the defendant’s view of a case and the low end of a plaintiff’s view of the case are not necessarily perfectly aligned, but once those are discussed in a mature fashion by parties acting in good faith, the middle ground between those two bookends is a fertile ground for case resolution.

Our belief is that almost no case should be tried and almost every case should be resolved by settlement. Factually, most are settled but far too late in the process for either side to feel the full benefits. There are areas of weakness in both cases, but the parties have to recognize collectively while focused on a given case and, in a room, together what each of them likely knows intuitively: that the cases do not age well for either party.