ADR Systems recently spoke with Hon. Michael R. Panter (Ret.) to discuss when to consider mediation in a case and how to pursue mediation through various stages of a case.
Is there a right time for mediation?
Judge Panter: In any basic trial advocacy course, we’re taught to think about resolution from the moment of engagement. If we’re only preparing for trial, we’re not preparing for the most likely way the case is going to be resolved. Attorneys need to spend more time thinking about how the case is going to be resolved, and that includes thinking about when and how to get to mediation.
Everyone wants to settle when they feel their case is at its strongest point. That may be after a key witness admission or on the eve of trial. The problem is the other side wants the same positional strength. Mediation should be considered throughout the case, from the very start, through pleadings and depositions, during the trial and even after it’s complete. Whenever you start a mediation, the process of risk and benefit analysis is the same. A good mediation should at least put the parties on the path to an efficient settlement.
Could you explain how mediation can work in the different stages of a case, whether it be pre-suit, in-suit or post-suit?
Judge Panter: Generally, the earlier into the case, the less data there is to discuss and the less investment everyone has in the case – investment means money, time and emotion. If a case can be resolved early, everybody wins. If it can’t, everyone should leave having learned more about the case and what must be done to get to a settlement point.
Closer to trial, parties have generally dug in. The lawyers have fixed opinions and may be less open to listen to the other side. A lot of work has already been done and an imposed decision is imminent. Even close to the trial, there’s still plenty of unknowns and less time to find out the answers. Whenever you choose to mediate, the goal is the same – getting the best result for your client.
Can older cases still be mediated?
Judge Panter: Absolutely. Cases can be mediated anywhere on the litigation path, any time there is still risk. Mediation won’t work when risk is gone. I just saw the fabulous movie, “Darkest Hour,” quoting Winston Churchill as saying, “You cannot reason with a tiger when your head is in its mouth.” Until that last moment, negotiating is always a possibility and should always be considered.
Judge Panter is a senior mediator and arbitrator at ADR Systems. He is known for his thorough and intelligent approach to settlements and the boundless energy he brings to the dispute resolution process. Judge Panter has more than 30 years of legal experience and brings a unique and empathic approach to counsel and their clients. He has mediated a wide variety of commercial and personal injury cases.
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