What is the point of going to trial if there is a chance the client will have to pay the other side's attorney fees?
Through an offer of judgment.
Nathan’s Answer
Your question leads to the interesting proposition that mediation should be considered as a way to mitigate these imbalances and risks in taking a matter to trial (attorney's fees, losing, publicity, time spent litigating the matter, costs of just bringing the matter to trial, etc.) Instead of being confronted with the possibility of one side winning everything and the other losing everything so to speak, it might be more palatable for a "legal game theorist" to balance the risk via mediation, since it is never really clear who will in fact be the winner in litigation, where attorney's fees are most commonly awarded.
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