My Approach to Mediation
Preparation. Candor. Perspective. Respect.
I have spent more than four decades representing clients in litigation. Those experiences have taught me that the most effective path to resolution begins with a thorough understanding of the dispute, a candid assessment of the risks, and a willingness to listen.
I do not believe a mediator's job is simply to carry settlement offers from one room to another. Nor is it to pressure parties into agreements they do not understand or genuinely accept.
My role is to help lawyers and their clients examine their positions thoughtfully, understand their alternatives, and determine whether a resolution can be achieved that better serves their interests than continued litigation.
Preparation Matters
I learned early in my career that there is no substitute for hard work and preparation.
Experience is important, but it does not replace careful examination of the facts, the law, and the evidence.
I want to understand not only what each party believes happened, but why the parties disagree about its significance. I want to know the important documents, legal issues, expert opinions, and practical consequences of the available outcomes.
The better I understand the case before the mediation begins, the more productive our time together can be.
Every Case Has Strengths and Weaknesses
One of the most important lessons I have learned as a trial lawyer is that every case can be won, and every case can be lost.
Thoughtful lawyers can examine the same facts and the same law and reach different, reasonable conclusions.
That does not mean all positions are equally persuasive. It means that even a strong case carries uncertainty.
Effective mediation requires a willingness to recognize both the strengths and weaknesses of a case: the favorable evidence and the troublesome facts, the promising legal arguments and the obstacles that may prove difficult to overcome.
I believe that kind of candor builds credibility and creates opportunities for resolution.
Mediation Is Not a Trial
Mediation requires effective advocacy. Lawyers should be prepared to explain the facts, the law, and the reasons their clients believe their positions are justified.
But mediation is not another opportunity to obtain a declaration that one side has won and the other has lost.
It is an opportunity to examine the dispute from a different perspective.
I do not regard a willingness to mediate as a sign of weakness. Quite the opposite. It reflects a willingness to confront the case honestly, evaluate the risks, and explore whether the parties can achieve a better result through negotiation.
The Economics of Litigation
Early in my career, I represented insurance companies in casualty litigation. Preparing litigation budgets and reporting to claims adjusters taught me to appreciate the economic realities of lawsuits.
Litigation is expensive. Discovery, experts, motion practice, and trial consume resources, often long before the merits of a dispute are finally determined.
Those expenditures may be justified. Some disputes must be tried.
But parties should understand the economics of their choices, particularly when the costs of continued litigation may exceed the additional benefits they reasonably hope to obtain.
Meaningful settlement discussions can preserve resources and create opportunities that may disappear as litigation progresses.
Listening and Respect
People involved in litigation often feel that their positions have not been understood or their concerns have been dismissed.
Before meaningful negotiation can occur, it is important that the parties have an opportunity to be heard.
Listening does not require agreement. Respect does not require concession.
It requires recognizing that the people involved have legitimate interests and concerns, even when their positions differ sharply.
I believe respectful dialogue makes candid discussion possible, and candid discussion creates opportunities for resolution.
The Value of Control
Every case eventually reaches a resolution.
Sometimes that resolution comes through negotiation. Sometimes it comes through a decision imposed by a judge, jury, or arbitrator.
I enjoy trial work and recognize that some disputes require adjudication. But I also understand the uncertainty that accompanies even the strongest case and the financial and emotional costs litigation can impose.
Mediation offers something a trial cannot: the opportunity for the parties to shape their own outcome.
The objective is not settlement at any price. It is an informed decision.
The decision belongs to the parties. My role is to help them make it thoughtfully.