Why Mediation Settles Cases When Other Methods Fail: Pulling Back the Curtain on Alternative Dispute Resolution
By Eric Gillett
Many of you remember the moment in “The Wizard of Oz” when Toto pulls back the curtain to reveal an ordinary man operating the great and powerful Oz through levers and buttons. This revelation transforms our understanding from magical mystery to comprehensible process. It was just a man behind the curtain, not a wizard after all. Similarly, mediation may seem mysterious to those unfamiliar with its inner workings, but understanding how it operates reveals why mediation succeeds where traditional litigation often fails.
The question that puzzles many attorneys, particularly those early in their careers, is why cases that survive extensive discovery, motion practice, and adversarial positioning suddenly resolve when placed in my hands. The answer lies not in magic, but in the fundamental differences between mediation and traditional litigation approaches.
The Distinctive Nature of Mediation
Mediation represents a fundamentally different approach to dispute resolution than the adversarial system that dominates how we litigate cases in the United States. At its core, mediation involves a neutral third party who facilitates communication and negotiation between disputing parties to help them reach a voluntary agreement. Unlike judges or arbitrators, I make no binding decisions about the merits of the dispute. Instead, I create an environment where parties can explore solutions that might be impossible within the rigid framework of litigation or simply where parties and their attorneys become polarized because of how hard it is not to take what happens in litigation personally.
I defended a wrongful death case involving five family members, three of whom died and two who were severely injured in a head-on collision. I needed to depose the plaintiffs who survived and several family members. Obviously, it was painful for these people to answer my questions about their loved ones. Despite my best efforts to empathize and respect their loss, great offense was taken from some of my questions. This drove a wedge between the plaintiffs and my client. It made it more difficult for their attorneys to explain why settlement was a better alternative than trial. Bringing a third-party neutral into the equation allowed the plaintiffs to hear this message.
This distinction between litigation and mediation methods proves crucial to understanding mediation’s effectiveness. While litigation focuses on determining who is right and who is wrong according to legal standards, mediation concentrates on what solutions work for the specific parties involved. This shift from rights-based to interest-based problem-solving opens possibilities that traditional legal remedies cannot provide.
The Psychology of Settlement
Understanding why mediation succeeds requires examining the psychological and practical barriers that prevent settlement in traditional litigation. Adversarial proceedings often entrench parties in their positions, making compromise appear as weakness or defeat. The public nature of court proceedings can make it difficult for parties to explore creative solutions without appearing to concede important points and lose face.
Mediation addresses these barriers systematically. The confidential nature of mediation discussions allows parties to explore options without fear that their statements will be used against them later. This confidentiality proves essential because it enables honest communication about interests, concerns, and potential solutions that parties might never reveal in open court.
For example, parties are free to discuss their positions and make settlement offers knowing they are protected by statute from having these positions or offers used against them if mediation fails. In addition, they know I am not allowed to be called to testify about what happens at mediation, much less what is disclosed by the parties. These jurisdictional frameworks matter because they create predictable environments where parties can engage in mediation with confidence and without fear of reprisal. When parties understand the rules and protections governing the process, they are more likely to participate with me in meaningful discussions and reach successful resolutions.
That is not to say that this process is not abused. Sometimes during mediation, a party takes what I consider an unreasonable position. While I can’t tell a party what to do, I do take as much time as necessary to help them understand why their position is unreasonable and perhaps not in their best interests. This is some of the hardest work I do because the party or their attorney has succeeded in the past by taking extreme positions. Luckily, I am often able to convince them not to draw a line in the sand over which no one will pass. Instead, I help them find a way to communicate a message that benefits their position without alienating the opposition.
My role in facilitating communication cannot be overstated. I work hard to help parties move beyond positional bargaining to interest-based problem-solving. I assist in reframing issues, identifying common ground, and developing options that address the underlying needs of all parties. This process often reveals solutions that neither party initially considered but that prove more satisfactory than any outcome litigation could provide.
Flexibility and Creative
Problem-Solving
Traditional litigation operates within strict parameters defined by legal remedies and procedural rules. Courts can award monetary damages, issue injunctions, or declare rights, but they cannot craft the kind of creative, multifaceted solutions that often best serve parties’ actual needs. In mediation, I am able to show how flexibility allows for solutions that combine various elements: modified business relationships, payment schedules, ongoing obligations, or fair settlement amounts and other creative arrangements that address the specific circumstances of each dispute.
This flexibility proves particularly valuable in commercial disputes where parties may benefit more from restructured relationships than from monetary judgments. Family law matters often involve ongoing relationships that require solutions focused on future cooperation rather than past grievances. Employment disputes may be resolved more effectively through agreements that address workplace concerns rather than simply determining liability.
Flexibility should not be ignored even in personal injury disputes where money is often the only currency for resolution. The wrongful death case I discussed above is a prime example. In that case, we found a reason to discuss “non-monetary conditions” of settlement. Sometimes it might simply be an apology. But in this case, it required action on my client’s part. My client agreed to implement special training of its drivers to address not only the cause of the accident but who it impacted. Stories about two of the family members who perished were incorporated into the training so that drivers could better understand how accidents impact other people. I believe settlement would not have been possible in that case without the willingness of both sides to think flexibly.
Cost and Time Efficiency
While not the primary reason mediation succeeds, the process’s efficiency compared to litigation creates additional incentives for settlement. Mediation typically occurs much faster than litigation can be completed, allowing parties to resolve disputes and move forward with their lives or businesses. The reduced costs of mediation compared to extended litigation make settlement economically attractive even in cases where parties might ultimately prevail in court.
More importantly, mediation allows parties to control the timing and pace of resolution. Rather than waiting for court schedules and procedural requirements, parties can engage in mediation when they are ready to focus on resolution. This control over timing often proves crucial to achieving successful outcomes. I regularly encourage parties to get their dispute into mediation even before they file suit. Nothing prevents parties from exchanging information sufficient to inform each side what the risks are if they don’t settle. Additionally, attorneys who work on contingency should not be disincentivized to mediate early for fear their fee may seem unjustified to their client. Not only do many attorneys have a graduated fee schedule based on when a case is resolved, but most clients realize that they could not present their case any better in litigation than at mediation and that their skilled counsel earned the fee regardless. On the rare occasion this subject is raised by a concerned plaintiff, I have been able to explain on behalf of their attorney the value they are receiving through early resolution.
The Human Element
Perhaps most significantly, mediation succeeds because I treat disputes as human problems requiring human solutions rather than legal puzzles requiring technical answers. My role involves understanding not just the legal issues you bring to me but the underlying human dynamics that created and sustain the conflict between your client and the other side. This holistic approach often reveals paths to resolution that purely legal analysis might miss, and I happen to be very good at sussing out a solution.
Combining my legal knowledge with skills in communication, psychology, and creative problem-solving, I understand that resolving disputes requires addressing not only the immediate legal issues but also the relationships, emotions, and practical concerns that surround those issues.
Conclusion
Mediation settles cases when other methods fail because as a mediator, I address disputes holistically rather than through the narrow lens of legal rights and remedies. By creating safe spaces for honest communication, encouraging creative problem-solving, and focusing on parties’ actual interests rather than their stated positions, I open possibilities that traditional litigation cannot provide. The strong institutional support for mediation in our court systems reflects a long-standing recognition that this approach serves both the justice system and the public. Like the Wizard of Oz, my power lies not in magic but in the skilled application of proven techniques that help people solve their own problems.
Eric Gillett is a professional mediator, arbitrator, and litigator. He is also a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206-287-1775 or jreddy@pregodonnell.com. Further information is available at www.gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
