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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.
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