It happens in many mediations, that one or both sides begins to feel frustrated with the other sides' moves, and expresses a lack of hopefulness of settlement. "Go tell them to give us a better number or we're leaving!" That happened in a recent mediation, where the parties were far apart and declared impasse. I met separately with each side, and asked everyone to stay until I had "closed things up" with the other side. I told each side that I really felt the case could and should settle if everyone was willing to stay and put in some more effort. Nonetheless both sides refused to budge from their "last best final", or to work out something between the numbers. After trying a few other options unsuccessfully, I went to each room and told them we were done for the day, but I promised to continue negotiations.
Suddenly, with that pronouncement of the end, each side began telling me that "maybe" they could move a bit more. I got each side to commit to "baby moves" just to test the water more. Those baby moves turned into larger ones and we did reach an agreement (with a little extra nudge from me). So what happened? The reality of the door closing on settlement, after people have invested a day of their time and emotions and energy, without a resolution, with the litigation still looming ahead, often sinks in at that moment. Everyone knows of the risk of a loss of momentum once they leave the mediation. Someone may start rethinking why they even went as high or low as they did. Or the advent of spending more time and money out of pocket on litigation, will decrease what is available to settle. Or…perhaps people just wanted to put the dispute behind them and not be the one who "gave up". I do believe, despite protestations about what someone is going to do to the other in litigation, most folks come to mediation genuinely hoping to settle. The willpower to stick with the process, and see it through, more often than not leads to resolution. Just takes a little patience and faith, and perhaps some extra chocolate to power through.