Trial lawyers will universally agree that exposure to trial provides the greatest impetus for settlement of cases. Whether the settlement is reached before a judge, a master, or a mediator is inconsequential because the parties, knowing that they are going to be exposed to trial on a date certain, also know that the time has come to settle to avoid the risk of trial. Today’s pandemic world has, by and large, interrupted the normal progression of most cases regarding when they will go on trial. As a result, mediation has assumed a more important role in the process of disposing of cases by settlement.

Pre-pandemic, when parties decided that they wanted to mediate a case, it was against the background of an impending trial date; motions in limine had been filed and all experts had been retained some of whom were even videotaped. When the parties jointly agreed to attempt a mediated settlement knowing the impending trial date it normally assured the mediator that the parties were sincere and realistic about their intentions to mediate and settle the case.