Mediation Style & Process

Most cases settle and the question is whether a case will settle before enormous cost and time-consuming efforts are expended during litigation, arbitration or at trial. “Businesspeople make business decisions” and a mediator best serves the parties in helping them reach that most efficient, cost effective and successful resolution that businesspeople seek. A good mediator is familiar with litigation costs and the time and expense of litigation, and that does not just include counsel’s time and expense, but often more importantly, the parties’ time and attention diverted from their businesses. The parties in mediation have flexibility to negotiate and design their settlement to meet their business needs – payouts, future conduct — that might not otherwise be available in arbitration or litigation, etc. To be effective, mediators must understand the industry and business in which the parties are engaged and have a keen understanding of the applicable law, counsel’s arguments and the parties’ likelihood of success on the issues presented in litigation. A good mediator must have the ability to listen, be empathetic, be challenging and be tenacious to reach a resolution. Mediation will more likely end in a successful resolution when the parties themselves believe they have had an opportunity to be heard and understood and can evaluate the merits of their claims and risks and rewards of litigation or arbitration.

I typically hold a joint session so that counsel and the parties can exchange information in order to gain a more fulsome picture of the facts and better understanding of each other’s points of view. I also encourage an exchange of mediation statements with opposing counsel and a short private statement containing more confidential information and items that are important for me to navigate the mediation process. My approach to mediation incorporates elements of both facilitative and evaluative mediation techniques. I enjoy a high success rate in my mediations.

I have developed a specialty in construction mediation under “mediate-first” clauses contained in AIA contracts. I firmly believe it is never too early to mediate matters, and an extended joint session often leads to resolution in those matters