If a two-sided mediation fails, it is for one of four reasons: 

•  Side A is fine with going to trial in the courthouse.   Side A has no significant time or money pressure to settle the case before the scheduled trial date.
• Side A won’t give side B air in a jug.  Could be anger, could be hatred, could be “principle,” could be the need of A to control B (dominance).  But for whatever cause, A’s intransigence is complete.
• Side B is dishonest, and Side A knows it.  The dishonesty may extend beyond this particular case; may be limited to this case; or may just be B’s failure to negotiate in good faith.    
• There really is no middle ground for this case.  Nothing can be compromised. X or Y will be the outcome.  There is no X-and-a-half.

But where there is time and money pressure, you will see that people in business do not litigate.  They have better things to do. They have businesses to run. They mediate. 

Business men and women cannot waste months in trial preparation and then a week or more in the trial itself.  Then possibly more time on post-trial motions and appeals. Not to speak of attorney fees and court costs.  

There are sales to make, contracts to sign, loans to secure.  

Litigation is paralysis. 

Then again, here’s another thing to look at.  There may be more factors–you could label them “personality factors”–which will influence whether a business case (or any kind of case for that matter) can be settled by mediation, or by good attorneys in pretrial negotiations. 

In cases with more than two parties, of course, the difficulties mitigating against settlement compound not arithmetically but geometrically.  But with two parties only, I believe this is the situation:

• If one of the parties is mean and petty, that is a score of one.  The case can probably be settled by mediation or in pretrial negotiations. 
• If one of the parties is mean and greedy for money, the case has a score of two, and can probably be settled, but only with money.  
• If one party additionally has a firm belief that the other side is a truly bad person, the case has a score of three and can only be settled with money and self-abasement.  
• If one party is mean, money-greedy, morally superior, and additionally possesses a “by God . . .” attitude, the case is a four and must be litigated.  It is a mess.
• The fifth and last factor is the presence of a combative attorney.  I mean more than a zealous, devoted, and competent attorney. Hopefully each side has that.  I mean an attorney who fights because of his own personality deficiencies. Who needs to show off, perhaps.  Or who is so insecure he needs to sneer, preen, and triumph. With this sort of attorney, the case is a five, and only a judge can sort it out.

So, as you look at the case you are in as a party litigant–or as you look at the case which you  just received as mediator–what have you got? If you don’t have any of the bad “personality issues,” things are looking good.  And if there is time and money pressure, things are looking even better.