I read a very interesting article today about a hypothetical insurance coverage mediation in a publication that you need to subscribe to in order to have access - so I cannot link to it here. But for those of you who have access, you can read the article in LexisNexis® Mealey's™ Litigation Report, Insurance Bad Faith Volume 23, Issue #16 · December 24, 2009. It is titled, "The Mediation", and was written by John J. Pappas of the law firm of Butler Pappas Weihmuller Katz Craig LLP.
My wife, Vickie Pynchon, is a full time mediator and arbitrator who writes a blog devoted to the practical and academic issues raised by commercial mediations and arbitrations called Commercial ADR. I passed the article along to her. She posted an interesting commentary on the mediation that John had described, with her thoughts about what the hypothetical parties might have done to better achieve their goals and how they perhaps in fact did.
As Vickie says, there is no right or wrong that you can point to with any certainty. My own take on these issues, based not on the academic training that Vickie has had, is that she is correct that the early offers and counter-offers in the stratosphere or the basement are a total waste of time and do nothing to define the ball-park that the players want to play ball in. I also agree with John's last comment in the endnote to his article: both fact and truth are difficult to pin-down in such a process, but are not necessary for resolution. That perhaps is the greatest lesson for those involved in mediations who want to resolve the conflict, as most any mediator will likely tell you at some point during the course of a long day.