By Hon. A. Gail Prudenti
The History of Dispute 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. 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.
Fortunately, there is often a better way of resolving disputes through the 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.
ADR Helps Resolve Cases
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, become 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.
Choosing the Right 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 a 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.
The parties have at least one common goal: 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.
Looking for the right neutral for your mediation or arbitration? See our panel of experienced neutrals here.
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.