What I DO recall of mediation a decade ago is that: (a) I NEVER settled a case in mediation, no matter how prominent the mediator (former Cal. Supreme Court Justices for instance); (b) we treated mediation as if it were an arbitration -- presenting our "case" to the mediator as if he would "decide" in our favor and then change the other side's mind about the merits of their own case; and, and, (c) then we, the advocates, would more or less simply WAIT for the mediator to tell us whether our gambit worked.

So I'm no barometer of mediation "generational" changes. I remember settlement conferences with the Judges, shuttle-diplomacy affairs with the hammer of the Judge's opprobrium for not being more reasonable, but that was when I was TRYING cases; was READY for trial when we had the settlement conference and then actually TRIED the darn thing!

The shift I'm seeing now is an economic one. More than half my cases settle around economic issues ("I'm broke") with payment plans and stipulated judgments in the event of default. We're negotiating trust or playing chicken in most of those cases, i.e., is the defendant REALLY poised to declare bankruptcy? If the defendant is a corporate entity, are there alter ego claims? Is there any property that can be used to secure the promised instalment payments? Is it a question of either paying the attorney for trial and winning (at which point the defendant will be broke & the attorney will be paid SOMETHING) or paying the attorney for trial and losing (at which point the defendant will be forced into bankruptcy and its attorney will NOT be paid at all).

Defendants rarely bring financial documents to mediation (even when I suggest it): why give the plaintiff a road map to their assets in the event of trial and judgment? So the plaintiff rarely has good reason to believe claims of impecunity.

On those occasions when insurance is available, the claims representatives seem to be in a belt-tightening mode and appear to believe that juries "in these economic times" will not be generous with a defendants' money, feeling the pinch themselves and not foreseeing any bail out in their own futures. The plaintiffs think the juries will be more harsh with defendants "in these hard economic times" if they believe the defendants are evading accountability for their part in the Plaintiff's loss.

And yet so few cases actually go to trial that I often feel a compelling urgency to help the parties stop the litigation bleeding, along with any posturing, so that there are funds around to pay for the losses rather than the high-stakes game of chicken the litigation so often appears to be.

I HATE to say to ANYONE that "litigation is expensive; the process too slow; and the result uncertain" when, despite EVERYONE'S protests to the contrary, the main obstacle to settlement remains the gnawing sense on both sides that they're being "taken" (what's left of the hope for "justice" or "fairness" by the time most cases get to me).

The justice system should work with more precision -- quickly and inexpensively for the small cases; with efficient case management for the large ones. But it doesn't, of course, most of the time.

And finally, NO ONE is ever "right." Each side has only their own part of the story, which has been tended, polished, defended from harm and crafted to prove a point rather than to resolve the parties' mutual problem. It's frustrating for everyone concerned: parties, attorneys, mediator, but we haven't yet found a better way of proceeding.

Many cases these days put me in mind of a barn-raising. The losses (usually business, not personal injury losses in my practice) are of a type that neighbors might have pitched in to remedy in an earlier era, not expended money to hire experts to determine who's FAULT the smoldering barn is, but simply re-build the darn thing.

Oops. I allowed my comment to go on and on, expressing a mediator's frustrations rather than the issues both of you raise. But now that I've done it, best to leave it for whatever it's worth and get on with my day!