Just Carrying a Bucket Rarely Settles Cases

The plaintiff demands $500,000. The defendant offers $25,000. The mediator carries each number to the other room, reports the predictable expressions of disbelief, and asks whether anyone is willing to move.

Sometimes this produces a settlement. But if that is all the mediator does, the parties are entitled to wonder what they are paying for.

I call this the “bucket-carrier” approach to mediation. The mediator carries offers and demands from room to room but does little to examine the assumptions behind them. Each side explains why it will win. The mediator listens politely and takes the next number across the hall.

There is a place for conveying proposals accurately and patiently. But I believe a mediator should bring more to the table.

A number is the product of assumptions.

A settlement demand usually rests on a view of liability, damages, and the likelihood of collecting a judgment. An offer rests on similar judgments, sometimes with very different conclusions. When the numbers remain far apart, the useful question is what accounts for the difference.

Perhaps the plaintiff assumes that a disputed legal issue is settled in its favor. Perhaps the defendant assumes that its principal witness will be persuasive. Perhaps both sides are overlooking the expense and uncertainty of proving what they believe happened.

Carrying another number does little to address those problems. The mediator needs to examine the assumptions.

What happens if the court rejects that interpretation of the contract? What evidence establishes causation? How will the witness explain the email that contradicts her testimony? What supports the damages calculation beyond the client’s conviction that the business would have succeeded?

These questions deserve more than a passing mention.

A strong legal theory can still be difficult to prove.

Lawyers spend a lot of time assessing legal claims and defenses. But cases can also have structural weaknesses: problems with the witnesses, documents, proof, or practical ability to present a coherent story.

The indispensable witness may be evasive. A key document may be missing. The damages expert may depend on assumptions the evidence does not support. A party may sincerely believe its account while repeatedly changing important details.

A mediator should be willing to discuss these weaknesses candidly. “We have a strong claim” does not answer the question of whether the available witnesses can prove it.

The same scrutiny belongs in the other room. A defendant’s confidence in a legal defense may exceed the defense’s actual reach. Its favorable documents may require an explanation from a witness who will struggle under cross-examination. Its assessment of damages may disregard evidence a jury could find persuasive.

A mediator can remain impartial while candidly examining the weaknesses in each side's position.

Candor requires preparation and judgment.

There is a risk at the other extreme. A mediator who announces a verdict after a superficial review may create resistance and lose credibility. Pressure unsupported by analysis is unlikely to help anyone make a better decision.

An effective mediator should understand the record, listen to the explanation, and acknowledge when a party has a good answer. Some apparent weaknesses disappear under examination. Others become more serious.

I believe the mediator earns the right to be direct by first doing that work.

The discussion should also respect the difference between identifying risk and predicting an outcome. A witness’s inconsistency may matter greatly, or a jury may accept the explanation. A legal argument may be persuasive without being certain to prevail. The point is to help the parties assess those possibilities honestly.

The parties make the decision.

The mediator does not decide the case, and settlement at any price is not the proper result. Sometimes the parties have substantial, reasonable disagreements that cannot be resolved that day.

But they should leave mediation having tested their positions against the evidence, the law, and the practical demands of trial. They should understand why their preferred outcome might not occur—and what that possibility means for the proposal in front of them.

That requires preparation, patience, and a willingness to have uncomfortable conversations.

Carrying a bucket is part of the job. The parties deserve a mediator who also examines what is in it.