In an effort to maximize the opportunity to prevail at trial, attorneys and clients spend a considerable amount of time preparing their arguments, trial exhibits and testimony. That same level of preparation should be devoted to mediation.
To attempt to maximize the opportunity to resolve a controversy, especially on the most acceptable feasible terms, preparation for mediation is absolutely essential. Neglecting to prepare can constitute a grave error, because an opportunity to terminate a dispute may be lost and favorable settlement terms might subsequently not be available.
So many times attorneys and parties treat mediation very nonchalantly. Frequently, mediation is viewed as a preliminary stage in dispute resolution imposed by a contract or court order that is dealt with very perfunctorily, rather than with the attention to detail and planning that must accompany every serious attempt to resolve a dispute.
To maximize the effectiveness of mediation as a procedure to foster resolution of disputes, attorneys and clients must meet, plan and give thoughtful consideration to the goals that they seek to achieve. After establishing those goals, attorneys and clients must devise the strategy that will be employed to reach those objectives.
Obviously, meetings between counsel and client are absolutely essential for preparation for mediation. Less obvious, however, is a preparatory meeting with another person trained as a mediator. Conferring with another mediator and having that person review a draft of the mediation statement and any related material can be invaluable. At a conference with a surrogate mediator, the attorney and client can present a dry run of the opening statement, responses to questions likely to be posed by a mediator, the presentation of a settlement proposal and the evolution of the proposal as anticipated responses are made by the other participating parties. At the conclusion of the session, the surrogate mediator can critique the approach to mediation that was taken by the attorney and client and suggest adjustments to the presentation and the negotiating strategy that was employed. As a result of that preparatory session, the attorney and client will be better able to maximize a live mediation session to advance their objectives of not only resolving the dispute, but also doing so on the most favorable terms.
This is an exercise that is well worth the investment of time and money. Because mediation is a much more interactive process than a trial or arbitration hearing, it is absolutely essential to simulate the human dynamics associated with interacting with a mediator. That exercise can permit the attorney and client to adjust their approach to mediation and the presentation of their case. Most importantly, the surrogate mediator will be able to offer guidance that could maximize the opportunity to conclude mediation successfully.
William Wolf can assist attorneys and their clients in that critical phase of the mediation process. More than 150 matters have been referred to Mr. Wolf as a mediator, arbitrator and special master. He has also represented numerous clients in mediation. That background together with his experience as a trial and appellate advocate make Mr. Wolf particularly suited to assist attorneys and their clients in preparing for mediation.
Mr. Wolf, who is a partner in the law firm of Bathgate, Wegener & Wolf, P.C., Lakewood, New Jersey, has been reappointed by the New Jersey Supreme Court to serve on the Committee on Complementary Dispute Resolution.
Mr. Wolf concentrates his practice on commercial litigation, land development, including municipal land use approvals and mediation. Mr. Wolf’s practice has a particular emphasis on the representation of parties in complex litigation.
Mr. Wolf is a graduate of The College of The Holy Cross, the University of Chicago and Syracuse University.
Mr. Wolf is admitted to practice in New Jersey, New York and the District of Columbia. He is also admitted to practice before the United States Supreme Court, the Second and Third Circuit Federal Court of Appeals, the United States District Court for the District of New Jersey, and the Southern and Eastern District of New York, and the United States Court of International Trade.
Mr. Wolf holds a peer reviewed AV rating from Martindale-Hubbell, designation as a Super Lawyer and is a fellow of the Litigation Counsel of America.
by William J. Wolf
Bathgate, Wegener & Wolf