This blog by the mediator Andrew Hildebrand contains a number of insightful comments about the challenges that face litigators and their clients when they come to try to resolve disputes. The linked post in particular, about why litigants and their advisers sometimes behave irrationally, particularly struck a chord.

Of the items on the list, "outcome bias" is perhaps the most challenging in a negotiation context. Often, the client has followed the process of analysing and valuing its case well, but has encountered an opponent which has not done so, and which as a result has an unreasonably high opinion of its case.

This can lead to the client being presented with a stark choice: do they make concessions beyond what their analysis suggests is appropriate, simply in order to achieve the "good" outcome of a settlement? Or should they stick to their guns in the face of considerable pressure to see the matter concluded? The latter course, though it may feel like a "bad" outcome, is almost always the right approach.

Consequently, although it may not be a popular viewpoint with many mediators, I have always felt that it is better to encourage clients to feel confidence in the processes they have followed and the decisions that those processes inform, than to be prepared to compromise at any cost.