Every mediator has his or her “center of gravity.” If the center of gravity is, say, in four figures or in the very low five figures and I think the case is worth a lot more, I can smell it pretty quickly, and I prepare my clients to walk out of the mediation, even if I’m paying for part of it and even if it’s just started. The “center of gravity” is where the mediator thinks the case should settle.
If the mediator has been an industry drone to me, or to my clients, I make it a practice to walk out while he/she is in the other room, so he/she is unpleasantly surprised when they return to my room with their lowball offer. That usually sends a pretty strong message to the other side. I certainly don’t do this often, but I’ve done it enough that the defendants know I will.
One mediator we used in downtown LA a lot had a “center of gravity” in the high five/low six figure range for my better cases, and we settled a lot of cases. Now the bureaus refuse to use him.
So, yeah, the attorneys and the clients ultimately settle the case but don’t underestimate the value of having a mediator with a higher “center of gravity.”
Also, if a mediator bypasses me (cut me out of the circuit) to try to talk directly to my clients, specifically to countermand my advice and presence, that’s another no-go with me. I will often warn the mediator point-blank that they are not to try to bypass me, and if they try it again, we will leave.
If a case sucks and I really want to get it off my desk, then yes, I will agree to any mediator, even an industry drone, just so they can say all the things to my client that I have been trying to say but that the client will not hear. There are times when it’s good to have an industry drone mediator.