|
Thoughts on Alternative Dispute Resolution
I have spent my entire professional life dealing with people, first as a trial attorney for 23 years, and since 1988 as a Superior Court Judge. Now I am retired from the Bench and working as a mediator and arbitrator. Individuals, families, and corporations come to me seeking solutions through alternative dispute resolution (ADR) to seemingly un-resolvable situations. I have discovered an honest definition of my own direction. After many years of successful public service, my ability to serve my professional community effectively has increased tenfold.
As to types of cases, I've handled just about everything but criminal law. Torts, contracts, labor, employment, you name it and somewhere along the line I've handled it. To me, the essential feature of any mediation is being able to bring the competing interests of the parties into a sufficient alignment that they can all see their way to settling rather than continuing with litigation. This alignment of interests comes from the willingness of the parties to resolve their dispute as well as from the skill of the mediator in emphasizing areas of potential agreement and minimizing areas of conflict. It doesn't seem to matter what might be the subject matter of the dispute, the skill of the mediator is found more in his ability to reconcile the differences and promote a resolution rather than any particular knowledge of the subject matter of the litigation.
I find that parties come to mediations for multiple reasons, some of which are actually to settle a case. Mediation is sometimes used as a discovery tool, which actually moves the case along in multiple areas and paves the way for an ultimate settlement. Sometimes the parties need the mediator to talk to the clients to persuade one side or the other of the merit or lack of merit in the case. Sometimes one party is looking for the mediator to convince the other side their case is much weaker than they acknowledge. And, as I mentioned initially, sometimes the parties actually come to mediation to settle their case. It is the willingness of the parties to negotiate a settlement coupled with the persuasiveness of the mediator that can push a case to early resolution. For this reason I believe that an early mediation hearing will benefit all sides. An early settlement obviously saves significant costs including legal fees, litigation expenses and the expenditure of enormous amounts of time.
Parties are often reluctant to attend early mediation sessions because they believe there is insufficient information available to adequately evaluate their case, their exposure, their strengths and weaknesses. I believe that a skillful and experienced attorney, working with a realistic and cooperative client, can reach an early evaluation that is probably 80 accurate. This position is certainly sufficient to seriously consider an early settlement.
I have worked with attorneys in suggesting ways in which they can improve their presentation both at mediations and trial. I have personally tried, as a trial attorney, over 75 Superior Court jury trials plus countless Bench trials and arbitrations. As a Superior Court Judge I not only tried a few hundred Bench trials, I was in a position to follow up on the settlement conferences that ultimately went to trial and compare the settlement position of the parties with the trial results. You might say that I have in my head (i.e., memory storage banks) thousands of trial results, thousands of plaintiff and defendant arguments, thousands of evidence issues and approaches, thousands of presentations. While I do not promise instant and accurate recall of this data, the information is something I regularly draw upon in assisting parties to either prepare their cases for settlement/trial or in achieving a resolution of their dispute.
|