Mention ADR to many lawyers and litigants, and their response might well be that it is simply a court-mandated attempt at settlement that they must undergo before proceeding to trial, no matter what the actual likelihood of a settlement is. Some might be ready, depending on the nature of, and the amount of money at stake to try in earnest to settle the matter, while others might know that mandated settlement is highly unlikely to achieve its goal in their case, for reasons running from the skills of the mediator through personal animosity of the parties to the bottom line – the amount of a money settlement.
The situation is somewhat different when the parties agree to seek mediation from a major ADR firm such as JAMS. The parties will have agreed to spend a considerable sum shared between them to hire a mediator from a large menu of well-vetted and experienced mediators. Some of these mediators are retired state or federal judges, while others have extensive experience as practicing lawyers in specific areas of law, such as maritime or construction law, and some others have made a profession of mediating for many years. From this menu can be chosen a short list of mediators fitting qualifications appropriate to the case, following which the parties will pick the one they both agree upon. Thus, the mediator will know that the parties have placed their confidence in him or her to exert best efforts in helping them reach a settlement that is fair and reasonable. The mediator’s feeling of accomplishment upon settlement is a welcome reward for the hours of preparation, exhortation, and patient prodding that has brought the case to settlement.
Originally published in The Daily Record on July 15, 2018.
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