I would add one other point.

In discovery, there is no back and forth. Counsel tries to nail down a position in anticipation of trial. As counsel, I don't care about anything other than a clean transcript.

But in mediation, a controlled back and forth can give rise to a mutual understanding about the legal strengths of the case. It can be hard to justify a legal position to a mediator who has no stake in the outcome.

I wonder if Jay has ever opened up a mediation with "If there is a solution today, you are both going to lose more than you ever thought as a result of your interaction today. And you will like it."

But let me address your comment that "[i]t can be hard to justify a legal position to a mediator who has no stake in the outcome."

Mediators are thinking on two main tracks (with many sub-stations).

The first track is positional -- what is the likelihood of either side achieving victory at trial and what is the likely range of damages, i.e., are the various offers and demands placed on the table better alternatives to the "odds" of winning $Q to $Z at the time of trial.

The second track is interest-based, whether those interests are available to "expand the pie" or not. The issues involved here include the parties' appetite for further litigation; external events that make the existence of expense of litigation problematic from an organizational point of view; internal events that make even a small potential (say 25 or 30%) for an adverse verdict at trial to be unacceptable for the people whose decision it is to make or who may be held "responsible" for the existence of the dispute or its resolution at day's end.

These "internal" concerns include the retained litigators and their relationships within their own firm and between the firm and the client. At one "off the record" luncheon with opposing counsel in which we both agreed to share our individual concerns about the impending trial date, I learned that this attorney's position in the partnership was precarious and that a settlement at any number less than $10's of millions posed a serious threat to his career. I wish we'd brought a seasoned mediator to that luncheon.

As it was, I genuinely had nowhere to go with this information other than to report back to my client that I was persuaded that the Plaintiff was not "posturing" when it said it would not discuss settlement unless my client were willing to start negotiations at $10 million.

Today, I would have used this frank conversation of trouble on both sides of the suit as an opening for mediation regardless of my client's refusal to attend in the face of such a demand. Today I would know how to convene that mediation despite the Plaintiff's "position" that they wouldn't negotiate below $10 million.

Was I close?