Mediation and arbitration are the two most common forms of Alternative Dispute Resolution (ADR), which simply means resolving legal disputes without going to court. Both mediation and arbitration can provide faster, more cost-effective alternatives to traditional litigation, while still allowing the parties to resolve disputes fairly and professionally.
Mediation
Mediation is a non-adversarial process in which a neutral mediator assists the parties in negotiating a settlement. The parties retain control over the outcome. The mediator does not decide the case and has no authority to force a settlement.
I have mediated hundreds of cases, both while serving as a judge and later as a private mediator after retiring from the bench. I am fully prepared for each mediation. Preparation matters.
An effective mediator must be a careful listener and a clear communicator. Just as important, a mediator must be able to recognize not only what is said, but what is left unsaid. Parties often struggle to articulate their true concerns, risks, or priorities. Experience teaches you how to hear what is implied as well as what is spoken.
That level of understanding comes only from years of working with people from all walks of life, often in stressful and emotionally charged circumstances. My varied background allows me to recognize what parties may be reluctant or unable to express verbally and to help them communicate those concerns productively.
I also bring the experience necessary to evaluate the strengths and weaknesses of a case. I communicate those realities to the parties in plain, understandable language. Mediation is not the place for legal treatises or posturing; it is the place for practical problem-solving. Confidentiality is essential to a successful mediation. Each party must be able to trust that communications with the mediator will be held in strict confidence. After nearly five decades as a lawyer, I fully understand both the importance and the obligation of confidentiality. It is common for one or both parties to arrive at mediation with unrealistic expectations. I have found that the most effective way to address this is through direct, respectful questioning and careful listening. When parties are guided to examine their own assumptions, they often reach more realistic conclusions on their own. This approach avoids confrontation while keeping the focus on achieving a reasonable and durable resolution of the dispute.
Arbitration
Arbitration is a private, out-of-court process in which the parties present their case to a neutral arbitrator. Unlike mediation, the arbitrator decides the dispute, much as a judge or jury would after a trial. The decision is typically binding on the parties.
Having served both as a trial lawyer and as a trial judge, I am well aware that many cases take far too long to resolve and become unnecessarily expensive. As an arbitrator, minimizing cost and avoiding unnecessary delay are always foremost considerations.
An arbitrator is not bound by the full range of procedural or court rules. I work with the parties to streamline the process and move the case to resolution as efficiently as possible, while remaining fair and impartial. I listen carefully to the parties; I do not dictate outcomes.
When appropriate, an arbitration may be decided on written motions alone, which can significantly reduce both time and expense. If testimony is necessary, it may be presented by video or deposition, again saving time and cost. I allow the parties substantial control over how the arbitration proceeds, with fairness as the guiding principle. Once the evidence is closed, I issue a reasoned written decision, with appropriate references to the record and applicable law, consistent with my practice on the bench. At the conclusion of the arbitration, regardless of outcome, both sides should feel that they were heard and that the process was fair and impartial. That is my goal in every case.
“I have mediated hundreds of cases, both while serving as a judge and later as a private mediator after retiring from the bench. I am fully prepared for each mediation. Preparation matters.”
In addition to arbitrations and mediations, I have also participated in—or presided over—these other methods of Alternative Dispute Resolution (ADR):
Early Neutral Evaluation
In an early neutral evaluation, the strengths and weaknesses of each party’s case are presented to an evaluator (or panel of evaluators) early in the dispute. The evaluator then provides a non-binding assessment or recommendation. Evaluations can be conducted with both parties present, or with only one party participating. In my experience, this is most often done by a single party seeking an early assessment of the merits of their case, either before filing suit or early in the discovery process.
Mini Trial
A mini trial is a more structured process in which each party presents a summarized version of their case to a panel—often composed of individuals familiar with the issues in dispute, or, in business disputes, senior executives—and a neutral advisor who may assist in settlement discussions. Depending on the subject matter, the panel may also include lay persons with no prior knowledge of the case. The panel may or may not participate directly in the settlement negotiations.
Summary Jury or Bench Trial
A summary trial is essentially a mock trial conducted before a jury or judge alone that delivers a non-binding verdict, allowing the parties to gauge how a real jury might rule. These trials typically include testimony, opening and closing statements, and summary arguments by counsel. This process helps attorneys evaluate witness credibility, the effectiveness of their presentations, and the strength of their case theory.