Originally from Dispute Resolution Journal

As a seasoned litigator, I am rarely at a loss for words. Court reporters often chastise me for rattling off deposition questions too rapidly; judges occasionally glare at me when I fail to wait patiently for my adversary to finish speaking before I chime in with my point of view. Yet there I was, facing my opponents in mediation—a far less pressured setting—unsure of what to say. There was no court reporter recording each word, and no judge trying to speed the participants along to get to the end of a long court calendar. Instead, the proceedings were led by two soft-spoken attorneys (yes, there are a few of those out there) who suggested that we all address each other by first names. They explained that they simply wanted to “facilitate” (a new term in my litigator’s lexicon) a free discussion of our concerns, which might lead to consideration, in part, of “non-monetary remedies” for our dispute.

After over 20 years of defending lawsuits brought against the City of New York and other municipal agencies—most of my career has been devoted to medical malpractice cases involving public hospitals like Bellevue—I was participating in my first mediation. This came about when I was given the opportunity to take part in a pilot program run under the auspices of Columbia University Law School, in which a number of our medical malpractice cases would be mediated and then studied to see if it could be shown that mediation was an effective way of resolving these kinds of matters.