In all types of personal injury litigation, this scenario is happening more frequently: Discovery is complete, expert reports have been exchanged, settlement appears unlikely, and the case is headed to trial. Someone suggests mediation, or if settlement is not possible, a resolution through binding arbitration. Counsel must now prepare a presentation different from one before a jury, and determine what evidence to present and how best to present it. Most importantly, counsel’s presentation is to an audience much different from a jury: an arbitrator or mediator.
This article will discuss issues counsel must confront to be effective advocates in alternative dispute resolution, and to give a mediator and arbitrator’s perspective on these issues, which include, at mediation, what evidence, if any, should be presented, to whom, and what other information can or should be presented. At arbitration, they include matters such as whether expert testimony should be introduced through reports or live testimony. Finally, it will address how counsel can effectively represent their clients while still meeting goals of reducing the time and expense of trial.
