By A. Gail Prudenti

Traditional Methods of Conflict Resolution

Once upon a time, human beings routinely resolved their disagreements through brute force, with the more powerful party to a conflict prevailing and the weaker one licking their wounds. Litigation – a more orderly process where an impartial judge weighs the facts and evidence against a body of law constructed to apply equally to all – was a giant step forward.

But oftentimes, litigation is an unsatisfying dispute resolution tool for the simple reason that in a lawsuit, there’s a winner, and there’s a loser, and the loser inevitably feels that their perspective was not heard or respected. Further, litigation is expensive, it plays out in the glare of a public courtroom and the outcome is decided not by the parties, but by a judge or jury. It can drag on for years until all available appeals have been exhausted.

Alternative Dispute Resolution

Fortunately, there is often a better way of resolving disputes and that’s through increasingly popular “alternative dispute resolution” (ADR) techniques such as mediation, where a neutral facilitator helps the parties reach a mutually accepted solution, and arbitration, where the parties agree to allow a neutral to decide the case as essentially a private judge. Mediation is far less expensive than going to trial, and the parties have far more control over the outcome.

Many attorneys have told me about cases that limped along for five or even 10 years—with legal fees mounting—when in frustration or desperation the parties turned to mediation. Routinely, when the parties agree to mediate their dispute with the help of an effective mediator, they can resolve their differences promptly and amicably through an informal, non-adversarial process that helps them craft a mutually acceptable solution.

In recent years, ADR has, somewhat ironically, became embedded into the fabric of the state court system. Under the court system’s Presumptive Alternative Dispute Resolution initiative, most civil cases are referred to mediation or arbitration to see if they can be resolved outside the courtroom. That program has proven both successful and popular.

What Makes a Successful Neutral

The increased interest in ADR has created an increased demand for proficient, experienced neutrals with the skills necessary to resolve cases, and the wisdom to predict and forecast how a particular resolution would most likely play out if the case went to trial instead. A successful mediator or arbitrator brings objectivity, creativity, sharply honed listening and communication skills, persistence tempered with adaptability and specialized experience in and the diplomatic and legal experience necessary to avoid and, if necessary, move past logjams.

My decades of experience as a practicing attorney, trial judge, appellate judge, court system administrator and academic inform me that the best mediator or arbitrator for a particular dispute is one who has experience litigating or judging similar disputes. Just as we choose doctors for their topical expertise, we should choose neutrals the same way. Former appellate judges and attorneys who have spent their professional lives observing how cases play out in the real-world courtroom can provide enormous insight and unique understanding of the near and far ramifications. This gives them an in-depth understanding of the issues at play and the issues that need to be overcome to reach a resolution.

Generally, the parties have at least one common goal, and that’s to end the dispute so they can get on with their lives and livelihoods. The right neutral, with the experience and skills necessary to resolve disputes, using the empirical knowledge of what is likely to occur down the road, is best equipped to help deliver the finality that the parties crave.

This post was written by Hon. A. Gail Prudenti, mediator and co-founder of Mediation Solutions, and partner at Burner Prudenti Law. Gail has held numerous judicial positions, including as Chief Administrative Judge of the State of New York. She has also been in private practice and, most recently, served as the Dean of the Maurice A. Deane School of Law at Hofstra University.

In the June 22, 2023 issue of the ABA Journal, put out by the American Bar Association, there was an opinion piece entitled, “Is ADR All It’s Cracked Up to Be?” In that article, the author pokes fun at ADR (alternative dispute resolution), and specifically mediation.

He describes three kinds of mediators:

Couriers, who essentially just go back and forth between the parties delivering their offer and demand amounts, without adding anything to the equation;

Former judges, who he claims still think like judges, and are all about their ego, and “will remind you they were judges for 20 years and they know what’s best for the parties”; and

Pushers, who are “gung-ho” to settle the case and who often push too hard. He uses an example where one party is willing to offer $20,000 to settle the case and the other party’s demand is $1 million.

How to Make the Right Choices About Mediation

The problem with the above scenarios isn’t mediation or alternative dispute resolution itself. The lawyers in these examples either:

• Chose the wrong mediator to handle their case (there are plenty of mediators – including former judges – who are adept at settling cases, listen to the parties with compassion, devise creative solutions and provide realistic predictions about what may happen in a courtroom).
  
• Selected the wrong forum to conduct their mediation (often, court mediation conferences last only an hour and don’t provide sufficient time for the mediator to be fully briefed on the parties’ underlying needs or the circumstances of the case or to conduct meaningful conversations with the parties).
  
• Chose the wrong case to bring to mediation (if it is clear that the parties are intractable and not willing to compromise, mediation may not be the right forum to resolve the dispute. But ADR in the form of binding high-low arbitration, for example, might still be a better option than litigation).
  
• Were unrealistic in their expectations for ADR (even parties who are far apart in their valuation of a case could use mediation effectively, if not to resolve the case completely, then to limit the issues to be brought to trial).

If you want to improve your success at ADR, think carefully about the choices you are making leading up to the mediation or arbitration hearing. Know the strengths and weaknesses of the mediator, the forum, the parties, and your case. Make sure your expectations – and the expectations of your client – are realistic.

Should we forego alternative dispute resolution so lawyers can get trial experience?

The author goes on to say that one of the drawbacks of mediation is that by bringing cases to ADR and resolving them outside of the courtroom, lawyers are deprived of trial experience. But if there are no trials happening (as in most of the New York City-venued cases right now), or there are insufficient numbers of judges and other court personnel available to try those cases (which is the case in much of Nassau, Suffolk, and New York City courts), lawyers aren’t getting that trial experience anyway.

In addition, using arbitration as a forum to resolve cases provides lawyers with experience in presenting evidence, examining, and cross-examining witnesses and making closing arguments. While it might not be exactly the same as courtroom experience, it certainly is a step in the right direction.

Consider the client when choosing ADR

And let’s not forget about the fact that the argument against ADR because it deprives lawyers of courtroom experience leaves some very important people out of the equation – the clients.

Is the author actually suggesting that lawyers should forego ADR options so they can get trial experience, to the detriment of their clients? Those clients will likely have to wait years for their cases to be resolved in a courtroom. They will spend more money on legal fees in the interim. At Mediation Solutions, we think that losing the opportunity to try a case is well worth it if a client’s case can be resolved more efficiently through ADR.

The article certainly is a tongue-in-cheek critique of mediation, but whether the author is actually a fan of ADR or not, it does provide food for thought. Lawyers and clients who consider ADR should use care when choosing the forum and the mediator and set realistic expectations for the process. Not all cases are appropriate for ADR, but if you’re willing to make some compromises, it certainly has its advantages over litigation.

Learn more about why choosing the right mediator is critical to the success of your mediation.