I believe there are five factors which tell you whether a case can be settled by mediation. Let us imagine a simple case of only two parties. (In cases with more than two parties the difficulties compound not arithmetically but geometrically.) With two parties only, I believe this is the situation:
- If one of the parties is mean and petty, that is a score of one. The case can probably be settled by mediation.
- If one of the parties is mean and greedy for money, the case has a score of two, and can probably be settled, but only with money.
- If one party additionally has a firm belief the other side is a truly bad person, the case is a three and can only be settled with money and self-abasement.
- If one party is mean, money-greedy, morally superior, and additionally has a “by God . . .” attitude, the case is a four and must be litigated. It is a mess.
The fifth and last factor is the presence of a combative attorney. I mean more than a zealous, devoted, and competent attorney. Hopefully each side has that. I mean an attorney who fights because of personality deficiencies. Who needs to show off. Or who is so insecure he needs to sneer, preen, and triumph. With this sort of attorney, the case is a five, and only a judge can sort it out.