February 2012 Bar Bulletin
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February 2012 Bar Bulletin

ADR: Making the Most with What You Have

By Eric Watness

 

"If I had more time, I would have written a shorter letter."
—Marcus T. Cicero

"If you haven't got the time to do it right, when will you find the time to do it over?"
—Jeffery J. Mayer

Cicero's poignant words from the 1st century B.C. still have application today. And so does the retort by Mr. Mayer, author of Time Management for Dummies. Being brief requires a lot of work!

Preparing for trial or a motion hearing takes a great deal of preparation, but preparation for mediation takes time and effort in ways quite different from preparation for litigation. You are no longer trying to convince the tribunal of the wisdom of your client's claim. Rather, your objective is now to accomplish the best, most predictable and workable solution for your client's legal dilemma.

Unfortunately, some litigants approach mediation as if it is a side trip on the journey to trial, but many jurisdictions now mandate some attempt at ADR. And, from experience, you know that you will stand in good stead with your trial judge if you answer in the affirmative when you are asked if you have attempted settlement.

While mediation can be expensive, it is well worth the cost and effort if you properly prepare for and use it to your advantage. Your client deserves the best outcome he or she can obtain and that is not always what is received in a verdict after an expensive trial. With that in mind, here are some recommendations for engaging in settlement negotiations.


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