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By Raymond L. Niblock, Founder & Principal Mediator, Niblock Mediation Services For most lawyers, HR directors, and insurers, mediation is still viewed as something that occurs after  a dispute has matured—after pleadings are filed, discovery is underway, and positions have hardened. In many cases, that timing makes sense. But in others, waiting that long is precisely what makes disputes more expensive, more personal, and harder to resolve. Large, risk-averse institutions have confronted this problem directly. One of the more instructive examples comes from an unexpected place: the United States Air Force . What Large Institutions Have Learned About Timing The Air Force’s mediation program, as reflected in its Mediation Compendium (4th ed.) , offers a disciplined, experience-driven approach to early and pre-complaint mediation—not as a reflex, but as a strategic option deployed when timing and circumstances are right . The Compendium explains that early mediation often succeeds because disputes at that stage tend to be: less formal, less polarized, and less driven by sunk costs. Before parties invest heavily in positional advocacy—through pleadings, discovery, or internal escalation—there is often more room for problem-solving and creative resolution.¹ At the same time, the Air Force is explicit about a concern many lawyers share: parties may hesitate to resolve disputes early if they believe critical facts have not yet emerged or that they lack sufficient information to evaluate risk.² In other words, early mediation is not mandated simply because it is early. It is encouraged when it is useful. Early Mediation Does Not Foreclose Later Resolution One of the most practical insights in the Air Force guidance is its recognition that early mediation failures do not preclude later success . An unsuccessful mediation attempt at an early stage does not waive rights, lock in positions, or prevent mediation from working later once facts have crystallized.³ That point is especially important for lawyers and insurers who worry about “showing their hand too early.” Institutional experience suggests that early mediation can serve as a diagnostic tool —clarifying issues, surfacing misunderstandings, and narrowing disputes—even when it does not immediately resolve the case. Corroboration from the Legal Community Legal scholarship and bar-association experience largely reinforce the Air Force’s approach. A 2020 article in the Ohio State Journal on Dispute Resolution  examined early mediation programs across multiple jurisdictions and concluded that early mediation, particularly when flexible opt-out mechanisms are used, can reduce litigation costs and improve resolution rates.⁴ The article emphasizes that timing matters , but that delay often increases expense without meaningfully improving outcomes. Similarly, the Michigan Bar Journal  has documented successful pre-litigation mediation programs, particularly in civil and employment disputes, where mediation occurs before a complaint is filed . These programs report higher settlement rates, lower transaction costs, and greater participant satisfaction—especially when parties retain the option to pursue litigation if mediation fails.⁵ Other practitioner-focused commentary has emphasized that mediation is most effective when it is intentional and deliberately designed , rather than ad hoc or reflexive.⁶ Where Caution Is Warranted Experience, both institutional and private, also confirms an important limitation: some disputes cannot be resolved too early . Cases involving incomplete information, unsettled liability theories, or evolving damages may require a period of development before meaningful negotiation is possible. In those matters, premature mediation can feel performative rather than productive. The key is not choosing between early  or late  mediation as a matter of philosophy, but exercising judgment about readiness , informed by: clarity of the underlying facts, degree of positional entrenchment, cost trajectory of continued conflict, and the human or organizational toll of delay. A Practical Takeaway What the Air Force and the broader legal community demonstrate is not that mediation should always occur early, but that timing is a strategic decision , not a default. For lawyers, HR directors, and insurers, the question is not whether  mediation should occur, but when  it is most likely to alter the dispute’s trajectory. In many cases, earlier intervention—before positions harden and costs multiply—offers the greatest opportunity for resolution. In others, waiting until issues crystallize may be the wiser course. The value lies in having the experience to tell the difference. Endnotes U.S. Department of the Air Force, Air Force Mediation Compendium , 4th ed. (Washington, DC: Department of the Air Force, 2012), 10–11 , https://www.airuniversity.af.edu/Portals/10/AFNC/dispute-resolution/AF-Mediation-Compendium-4th-Ed-2012.pdf . Ibid. , 11 (noting party concerns regarding insufficient information at early stages). Ibid ., 11 (explaining that unsuccessful early mediation does not bar later resolution). Adam Noakes, “Mandatory Early Mediation: A Vision for Civil Lawsuits Worldwide,” Ohio State Journal on Dispute Resolution  36, no. 3 (2020): 410, esp. 428. Martin I. Reisig, “Hold the Lawsuit: Pre-Litigation Mediation Resolves Disputes,” Michigan Bar Journal  (December 2016): 20–22, https://www.michbar.org/file/barjournal/article/documents/pdf4article3012.pdf . Tracy L. Allen, “Engineering Dispute Resolution Processes in Advance,” Michigan Bar Journal  (August 2016), https://www.michbar.org/file/barjournal/article/documents/pdf4article2929.pdf .

By Raymond L. Niblock What is Civil Mediation? Civil mediation is a process in which a neutral third party, called a mediator, assists individuals or groups in resolving disputes outside of the courtroom. This method is commonly used in civil cases, such as contract disputes, personal injury claims, and family matters, but it can be used in many other contexts as well. Key Features of Civil Mediation Voluntary Process: Participation in mediation is typically voluntary, meaning both parties agree to engage in the process. Neutral Mediator: The mediator does not take sides or make decisions for the parties; instead, they facilitate communication and help explore potential solutions. Confidentiality: Discussions during mediation are confidential, allowing parties to speak freely without fear of their statements being used against them later in court. Cost-Effective: Mediation can be less expensive and quicker than traditional litigation, making it an attractive option for resolving disputes. Control Over Outcome: Parties have more control over the resolution, as they can negotiate terms that work for both sides. Benefits of Civil Mediation Civil mediation can lead to mutually agreeable solutions, preserve relationships, and reduce the emotional and financial toll associated with lengthy legal battles. It is often seen as a constructive way to resolve conflicts amicably.

By Raymond L. Niblock Not every case can be settled; some must be tried in court, and that is simply a fact of life. However, most cases can—and should—be settled. Even the most experienced trial lawyers will admit this when they’re honest. Every case presents its own set of problems, challenges, and complications. When settlement is possible, especially through mediation, it provides an opportunity to address the issues in the case and reach a resolution that takes into account the risks on both sides, ultimately leading to a settlement. With that said, there are some cases that are destined for a courtroom. Sometimes the stakes are so high or the nature of the disagreements between the parties so irreconcilable that there is only one answer: a trial. And I’d be lying if there is not a sense of satisfaction in taking a righteous cause to the courtroom. I’ve been there, but as the trial lawyer, I didn’t pay the price—my client did. Clients always pay the price. Win or lose, trials exact a heavy toll on a client when there are principles so important that parties must go for broke, as it were. However, I have come to believe that a settled case almost always yields the better outcome for the litigants. And that outcome isn’t always measured by money. Settlements can provide a sense of closure and certainty for all parties involved, even when the case seems at the outset one of those that "will never settle." A negotiated settlement offers something a trial doesn't: control over the outcome in the hands of the litigants, rather than abandoning control to a jury. When it comes to resources, settled cases save time and money, avoiding the lengthy, often costly trial process. The unpredictability of a jury’s decision can create significant anxiety for both plaintiffs and defendants, making settlement an appealing option. Moreover, settlements can foster a spirit of cooperation and compromise, allowing parties to maintain relationships that the adversarial nature of litigation might irreparably damage. In many instances, the emotional toll of a trial can be considerable, and settling a case can alleviate some of that stress, providing a more amicable resolution. In conclusion, while some cases inevitably require a trial to achieve justice, it is often the settled cases that yield the most significant benefit for all involved, illustrating the value of negotiation and compromise in the legal process.

Why Civil Mediation Settles So Many Cases — and What That Means for You By Raymond L. Niblock In the realm of civil litigation— encompassing torts, personal injury, and commercial disputes—one of the most compelling features of mediation is its strong record of achieving settlements . Many lawyers, mediators, and judges quote a figure of roughly 85 percent  of cases submitted to mediation ending in resolution. But how reliable is that number? What does the evidence actually show about settlement rates—and what does it mean for parties considering mediation? Getting parties together resolves claims and settles cases. The Evidence for a High Settlement Rate Several studies and practitioner reports confirm that mediation achieves settlement in a large majority of cases, although the actual rate depends on the case type, forum, and methodology. Federal Litigation Context (Eisenberg & Lanvers, 2009). In a landmark empirical study of roughly 3,300 federal district-court cases, Theodore Eisenberg and Charlotte Lanvers found an overall settlement rate of 66.9 percent , with substantial variation by subject matter. Tort cases settled most often—approaching 85–87 percent  in some districts—while constitutional torts and employment discrimination claims settled far less frequently. The authors cautioned that the “often-quoted 85–95 percent” figure for civil-case settlements is misleading when applied across all federal filings; however, tort litigation indeed demonstrates the highest settlement propensity.¹ Practitioner Observation (Sussman 2008). In an address at Fordham Law School, mediator and arbitrator Edna Sussman  observed that “ settlement rates in mediation are said to be on the order of 85–90 percent ,” reflecting widespread practitioner experience rather than a formal statistical study. Her paper, The Final Step: Issues in Enforcing the Mediation Settlement Agreement,  underscored the rapid growth of mediation in the United States and Europe and examined how mediated settlements are enforced—as contracts, judgments, or arbitral awards.² International Empirical Evidence (Kaiser et al. 2023). A 2023 peer-reviewed longitudinal study of 303 court-connected mediations in Germany  reported that 85%  of cases reached an agreement, and  91%  of parties confirmed the settlement in follow-up surveys.³ The authors, Philipp Kaiser, Gerhard Eisenkopf, Anja M. Gabler, and Felix L. B. Lehmann, also found that one-year compliance and satisfaction rates declined modestly (to about 65–75 percent), indicating that mediation succeeds overwhelmingly at resolution but that long-term satisfaction varies. Mandatory Court Mediation (Flynn & Kirgis, 2024). By contrast, a 2024 empirical study of mandatory mediation  in the Missoula Justice Court (Montana) revealed more modest results. Brock Flynn and Paul F. Kirgis found that while 55 percent  of cases reached an initial agreement, only 40 percent  remained settled without further court involvement. Remote mediations yielded slightly lower durable rates, and cases involving represented tenants settled far less frequently—raising concerns about fairness in mandatory, small-claims contexts.⁴ The authors concluded that compulsory mediation may enhance docket efficiency but yields lower long-term success than voluntary programs. Mediation works. Plain and simple. What We Don’t Know—and Why It Matters Although these studies collectively affirm that mediation resolves most civil disputes, several cautions apply: Aggregation hides variation. Settlement likelihood depends heavily on case type, representation, and forum. Federal data understate private mediation. Eisenberg and Lanvers analyzed court filings, not private mediations, so overall settlement rates in private practice may indeed approach the higher end of reported figures. Practitioner statistics are descriptive, not empirical. Sussman’s 85–90 percent figure reflects broad professional experience rather than a controlled study. Program design influences outcomes. As Flynn and Kirgis demonstrate, mandatory or low-value cases tend to settle less often and with weaker durability. What This Means for Tort, Injury, and Commercial Mediation Taken together, these findings support using a benchmark of roughly 75–90 percent  as a credible estimate for civil mediation settlement rates. In tort and personal-injury cases—where damages are quantifiable and both sides face litigation risk—rates near the upper range (80–90 percent) are common. Commercial and contract disputes exhibit similarly high resolution rates, driven by a focus on cost control and the preservation of relationships. Eisenberg and Lanvers’ federal analysis corroborates this pattern: torts settle most readily, followed by contract cases, then employment and civil-rights claims.¹ Why the Rates Are So High Several structural and behavioral factors explain mediation’s success: Willingness to negotiate:  Parties who choose mediation are typically predisposed to settle. Facilitation and realism:  Skilled mediators help participants assess the strengths, weaknesses, and litigation risks of their cases. Timing:  Mediation often occurs before positions harden, preventing escalation. Autonomy:  The process offers parties greater control and confidentiality than court adjudication. Cost and risk avoidance:  The financial and emotional incentives to resolve disputes without trial are powerful motivators. A high settlement rate is a compelling reason to consider mediation before submitting a case to a judge or jury. How to Use These Statistics in Practice When advising clients, attorneys, or insurers, these figures provide a realistic benchmark: “Empirical studies show that mediation in civil disputes typically results in settlement in the range of 75 to 90 percent—many sources cite an average of about 85 percent.” The caveats can also be explained: the rate depends on case type, stage of litigation, mediator skill, and whether participation is voluntary. Eisenberg and Lanvers’ 2009 analysis found that settlement rates averaged 67 percent overall , with tort cases approaching 85–90 percent —figures that, while lower than the popular 85 percent claim, remain strikingly high compared to trial resolution.¹ The bottom line is that mediation consistently offers far higher odds of resolution, lower costs, and greater satisfaction than litigation. Endnotes Theodore Eisenberg and Charlotte Lanvers, “What Is the Settlement Rate and Why Should We Care?,” Journal of Empirical Legal Studies  6 (2009): 111–146, https://scholarship.law.cornell.edu/facpub/203/ . Edna Sussman, “The Final Step: Issues in Enforcing the Mediation Settlement Agreement,” Fordham Law School Conference on Mediation (2008), https://sussmanadr.com/docs/Enforcement_Fordham_82008.pdf . Philipp Kaiser, Gerhard Eisenkopf, Anja M. Gabler, and Felix L. B. Lehmann, “Qualities and Long-Term Effects of Mediation,” Negotiation and Conflict Management Research  16, no. 2 (2023): 132–164, https://doi.org/10.34891/2022.612 . Brock Flynn and Paul F. Kirgis, “The Efficacy of Mandatory Mediation in Courts of Limited Jurisdiction: A Case Study from the Missoula Justice Court,” American Journal of Mediation  17 (2024), https://scholarworks.umt.edu/faculty_lawreviews/223 .

Breaking Through an Impasse: How Skilled Mediation Turned a Deadlocked Construction Dispute Into a Bittersweet but Wise Resolution By Raymond L. Niblock When two parties reach an impasse, progress can feel impossible. An impasse — a point at which negotiations stall and neither side is willing to move — often leads to escalating frustration, hardened positions, and the growing belief that litigation is inevitable. Egos are engaged at full tilt. Yet a deadlock does not have to be the end of the road. Skilled mediation can turn even entrenched disputes into opportunities for clarity, understanding, and resolution. This article examines how one mediator overcame a deadlock using effective strategies, as demonstrated by a real construction contract case in which an apparently unresolvable standoff was eventually settled through a bittersweet yet logical walk-away agreement. Understanding the Impasse An impasse occurs for many reasons, such as when disputing parties feel constrained by goals, values, or expectations that appear incompatible with any solution. Egos and the feeling of powerlessness also fuel impasses. Impasses can arise in any mediation involving conflicts of all sorts: workplace conflicts, community disputes, family disagreements, and negotiations in civil cases. Why Impasses Happen Emotional investment: Strong feelings can cloud judgment and entrench positions. Miscommunication: Parties often misunderstand one another’s intentions or needs. Lack of trust: Suspicion or past conflict makes cooperation difficult. Power imbalances: One side may feel marginalized or unheard. Unrealistic expectations: Parties may seek outcomes that the other side cannot or will not provide. Professional egos: a party’s representative can often be more vested in the outcome than the client. Recognizing these forces helps mediators tailor their approach to the specific dynamics of the deadlock. The Mediator’s Role in Breaking a Deadlock A mediator is a neutral professional who facilitates dialogue and guides parties toward voluntary agreement. Unlike a judge or arbitrator, a mediator does not impose decisions. Instead, they help parties understand their own interests, evaluate risks, and explore practical solutions. Key functions include: Creating an atmosphere conducive to an open discussion Clarifying issues and identifying misunderstandings Reaching a shared understanding of the facts Encouraging empathy and perspective-taking Generating and evaluating options Managing heightened emotions Building trust and promoting candor Assess the real-world outcomes of various solutions Reality-testing if the situation goes to court These tools transform impasse from a barrier into a starting point. Case Study: A Construction Dispute Reaches an Early Impasse A recent turnkey home-construction dispute illustrates these dynamics vividly. The homeowners had terminated the contractor’s services, believing the contract allowed termination with advance notice, and they withheld payment. The contractor sued for payment, and the homeowners counterclaimed for breach, asserting non-performance. They wanted their money back despite the contractor’s assertions that work had already been performed—including permitting and early development tasks. Tensions ran high. Within the first hour of mediation, the homeowners’ attorney announced that “there will be no deal that involves any money going from the homeowners to the contractor.” Full stop. What next? That statement drew a clear—and risky—line in the sand. It also ignored the homeowners’ exposure to the contractor’s pending breach-of-contract claim. But the lawyer’s hands were tied. His clients were angry, and it was boiling over. At face value, the negotiation appeared to be over before it began. What followed demonstrates the quiet power of mediation, because what the mediator saw was something entirely different. What he saw was two warring parties who both stood to pay more to lawyers than their claim, much less any counterclaim, was worth, all the while risking severe downside exposure to the losing party’s attorney’s fees. Practical Mediation Strategies Used to Break the Impasse 1. Reframing the Conflict Instead of confronting the positional stalemate head-on, the mediator reframed the dispute (and bought some time and space to see if there was a way around the potential impasse). The conversation shifted from: “Who is right?” “Who should pay?” to: “What is driving each party’s frustration?” “What will litigation cost compared to settlement?” “What possible paths remain?” This reframing opened emotional and analytical space for progress. 2. Active Listening and Separate Sessions Through private caucuses, the mediator learned that: The homeowners felt ignored, dismissed, betrayed, and wronged during the project. The contractor felt blindsided and professionally disrespected. These emotional truths weren’t in the pleadings—but they were central to the dispute. 3. Separating People From the Problem The mediator focused discussions on behaviors, expectations, and contract provisions rather than on personal attacks, asking questions, and allowing the party to answer, often without interference from the lawyer. This lowered defensiveness and improved clarity. 4. Identifying Underlying Interests Both parties shared an interest in: Avoiding the further expense of unpredictable litigation Protecting financial stability Preserving reputations Ending a conflict that had consumed significant emotional energy Avoiding the potential of “loser pays” fee shifting These shared interests became the foundation for resolving the issue. 5. Lawyers-Only Caucus: A Crucial Turning Point Removing the lawyers to a caucus separate from the clients allowed counsel to evaluate the situation candidly without the pressure to advocate and sabre-rattle: Likely mixed outcomes at trial Significant fee-shifting exposure Litigation costs that would easily reach tens of thousands of dollars A disputed dollar amount far smaller than the cost of proceeding This candid analysis pointed to the only rational path forward, especially with a mediator who can view the situation with the experience of being a veteran trial lawyer. The Settlement: A Bittersweet but Rational Walk-Away Ultimately, the parties agreed to a true walk-away: The contractor dropped its claim for unpaid amounts. The homeowners dismissed their damages claim. No money exchanged hands. Each side saved substantial future legal expense. The solution was bittersweet: neither side received the vindication they believed they deserved. Yet both gained something far more valuable: Resolution Face-saving dignity Emotional closure Protection from staggering litigation costs The protection of mediation confidentiality and non-disclosure Walk-away settlements are sometimes perceived as losses. In reality, they often reflect wisdom, courage, and clarity. Building Skills for Future Impasses Mediation doesn’t just resolve one conflict—it equips parties and counsel with tools for future negotiations. Every mediation prepares the mediator for the next one by reinforcing: Effective communication skills Emotional regulation Problem-solving mindsets Interest-based negotiation Respect for differing perspectives These skills reduce the likelihood of future deadlocks and build stronger relationships. Final Thoughts: Impasse Can Be a Beginning, Not an End An impasse can feel like a wall too high to climb. But with skilled mediation, that wall can become a stepping stone. By reframing the conflict, listening deeply, identifying interests, and evaluating risks, mediators help parties see possibilities where none seemed to exist. In the construction dispute described above, the only viable path forward was a bittersweet walk-away. Yet it was also the wisest, most economical, and most dignified resolution available, saving the parties tens of thousands of dollars in future attorneys’ fees and the potential of devastating fee-shifting consequences. Sometimes the most successful settlement is not the one where someone wins — but the one where everyone stops losing.

By Raymond L. Niblock Introduction Every mediator eventually encounters a case that ends abruptly. When that happens early—before offers are exchanged or meaningfully considered—it can feel unsettling for everyone involved. Lawyers may view the decision as irrational. Parties may experience it as morally necessary. Some mediator’s may view it as a failure on their part. From this mediator’s perspective, however, these moments often reflect something more fundamental: a temporary loss of capacity for deliberative decision‑making . This article blends mediation practice, conflict theory, and neuroscience to explain why some mediations cannot continue in the moment, why termination may be ethically required, and how mediators and lawyers can respond constructively when a party becomes emotionally dysregulated. A Familiar Mediation Scenario The mediation underlying this discussion involved a same‑sex divorce with relatively conventional legal issues: classification of property, allocation of debt, and the possibility of an unequal division based on circumstances within the marriage. One party was prepared to move forward with negotiations, but the other party felt deeply wronged and sought financial redress for perceived inequities during the marriage. Before the mediation could meaningfully unfold to explore the underlying feelings, one party who felt "wronged" abruptly terminated the process—without responding to an initial offer. From a legal standpoint, the decision was improvident and impulsive. From a neurobiological standpoint, it was predictable, if not inevitable. Amygdala Hijack: What the Science Says The term “amygdala hijack,” popularized by Daniel Goleman, describes a rapid neurological process in which the brain’s threat‑detection system overrides the prefrontal cortex. Joseph LeDoux’s foundational research demonstrates that emotional responses can bypass conscious cognitive processing entirely. When a person experiences perceived threat—such as injustice, humiliation, loss, or fear—the amygdala activates first. Stress hormones flood the system, neural resources shift away from the prefrontal cortex, and the brain prioritizes defense over deliberation. Why Reasoning Fails Under Emotional Flooding Neuroscientist Amy Arnsten has shown that stress hormones directly impair prefrontal cortex functioning, weakening working memory, impulse control, and cognitive flexibility—the very capacities mediation depends on. Under conditions of uncontrollable stress, the brain’s regulatory systems are effectively taken offline. A dysregulated party may appear articulate or resolute, yet remain neurologically incapable of evaluating risk or compromise. How Long the Brain Needs to Recover Contrary to common assumptions, emotional regulation does not immediately restore judgment. Bruce McEwen’s research demonstrates that stress hormones can impair cognition long after outward calm returns. Judgment impairment often persists for 24–48 hours, and full neurochemical regulation may take several days. Mediator’s Proposals and Re‑Engagement Offering a mediator’s proposal after termination aligns with institutional ADR best practices. The U.S. Air Force ADR Program recognizes that effective reality‑testing often requires a period of temporal distance from peak emotional arousal. A structured proposal allows parties to re‑engage once judgment returns—or to decline without coercion. Conclusion Mediation does not fail because emotion appears. It fails only when we pretend emotion does not matter. Sometimes the most responsible thing a mediator can do is recognize when the brain is offline—and wait until it comes back. Endnotes & Sources 1. Morton Deutsch, The Resolution of Conflict: Constructive and Destructive Processes (New Haven: Yale University Press, 1973). 2. Daniel Goleman, Emotional Intelligence (New York: Bantam Books, 1995). 3. Joseph LeDoux, The Emotional Brain (New York: Simon & Schuster, 1996). 4. Amy F. T. Arnsten, Stress Signalling Pathways That Impair Prefrontal Cortex Structure and Function , Nature Reviews Neuroscience 10 (2009): 410–422. 5. Bruce S. McEwen, Physiology and Neurobiology of Stress and Adaptation , Physiological Reviews 87 (2007): 873–904. 6. U.S. Air Force ADR Program, Mediation Compendium (2003).

Some Cases Need to Be Tried… By Raymond L. Niblock I was raised in the courtroom. My father was a trial lawyer, and from an early age, I understood that trials were where real advocacy lived. When I came up in the profession, the prevailing wisdom among trial lawyers was simple: “Get your client, your witnesses, and bring your satchel to court.” Raymond L. Niblock during the State v. Anderson death-penalty trial in Washington County (photo by Northwest Arkansas Democrat-Gazette, 2010) If you call yourself a trial lawyer, then get in there—call a witness, ask a question, introduce an exhibit, make your argument. That’s the work. Lawyers don’t decide cases. That’s what judges and juries are for. Even though I’m a mediator, I’m also a trial lawyer, and I still believe that some cases simply need to be tried. Whether because of unsettled law, disputed facts, or a client’s principle that cannot be compromised, there will always be matters that belong in a courtroom. Trial work remains vital to the legal system and to the public’s trust in it. But recognizing that truth doesn’t diminish the importance of mediation. In fact, it enhances it. The vast majority of cases filed in our courts settle before trial—by some estimates, well over ninety percent of them do.¹ In state courts, only about three percent of civil cases are resolved by trial,² and in federal court, the number is closer to one percent.³ As Abraham Lincoln wisely counseled more than a century and a half ago, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time.”⁴ Even in cases that are ultimately headed for trial, mediation can help lawyers and their clients narrow the issues, clarify the real disputes, and test the strengths and weaknesses of their positions. Sometimes, a day in mediation can do more to focus a case than weeks of discovery or motion practice. Justice Sandra Day O’Connor put it well: “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”⁵ For lawyers, mediation isn’t an alternative to advocacy—it’s another forum for it. A good mediation allows counsel to advocate, persuade, and problem-solve, but in a setting designed to produce resolution rather than verdicts. Some cases need to be tried. Most do not. But every case deserves a fair opportunity to settle—and mediation is where that opportunity lives.   Endnotes 1. See “What Percentage of Lawsuits Settle Before Trial?” The Law Dictionary, 2. Brian J. Ostrom and Neal B. Kauder, Examining the Work of State Courts, 2005: A National Perspective from the Court Statistics Project (Williamsburg, VA: National Center for State Courts, 2006), 22–23. 3. Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” Judicature 88, no. 1 (July–August 2004): 1–9. 4. Abraham Lincoln, quoted in “Three Quotations from Lincoln on Conflict Resolution,” Mediate.com , 5. Sandra Day O’Connor, quoted in “Quotes: Collaboration, Settlement & Resolution,” BLC Law Center,