The New York courts recently adopted a long overdue policy of presumptive mediation. This means that most, if not all, cases brought in New York courts will be candidates for mediation before the litigation process begins in earnest. Many New York litigators will have to adjust to this new approach to the resolution of cases and learn the art of negotiation and compromise.
To be effective in mediation, litigators should drop all of the knee-jerk vestiges of litigation practice, including the derogatory comments made about their adversaries and their clients, and learn to settle differences through mutual concessions. Putting on a show for their clients is an unhelpful and unproductive substitute for settling the case.
