Mediation Principles: Statement of Practice & Procedure by Hon. Roger Benitez (Ret.) United States District Court Judge (Ret.), Southern District of California

ADR INSIGHTS

Over the course of my career, I have presided over hundreds of Early Neutral Evaluation Conferences and Settlement Conferences. At the outset of each proceeding, I have found it helpful to bring the parties together and remind them that, while I am there to facilitate a resolution, the ultimate key to settlement rests with them. I also emphasize that civility and professionalism are essential to productive negotiations. Equally important, I remind participants that mediation is not a trial. We are not there to decide who is right or wrong, but rather to assess risk, find common ground, and decide whether a mutually acceptable resolution can be achieved.


In most litigation, but particularly in complex litigation, the parties are almost always represented by competent counsel. Accordingly, I make clear that I do not serve as an advocate or lawyer for either side, nor do I give legal advice. My role is to act as a neutral facilitator, helping the parties evaluate their positions and explore opportunities for settlement.


I also assure the participants that our discussions will remain confidential and explain that both federal and state law provide protections and privileges designed to encourage candid and constructive settlement discussions. Thereafter, I meet separately with each side to better understand their interests, priorities, and goals. I look to identify which issues are open to compromise and which are non-negotiable.


Particularly in complex business disputes, one of my most important functions is to help the parties recognize and evaluate their risks, the best possible outcomes, and ultimately the resolution that is realistically attainable under the circumstances.

 

If there is one cardinal rule that has consistently guided my approach, it is this: the circumstances of the dispute should dictate the process. No two cases are alike, and techniques that proved effective yesterday may not work today. Successful mediation requires flexibility, creativity, and a willingness to adapt. In the end, one must occasionally think outside the box.

by Hon. Roger Benitez (Ret.)

Hon. Roger Benitez (Ret.) is available as a mediator, arbitrator, and special master focusing in:

Multidistrict Litigation (MDL)

Securities and Shareholder Disputes

Antitrust and Competition Law

Patent and Intellectual Property

Complex Commercial Litigation

Class Actions

Employment and Wage & Hour

Consumer Privacy and Data Breach

Product Liability

Real Estate and Real Property

To schedule a case, please contact:

Haward Cho at hawardSDteam@adrservices.com or call (619) 233-1323

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