Today’s state and federal courts have a single-minded focus in encouraging litigants to resolve their cases. As a result, the question of whether counsel should consider mediation or other dispute resolution alternatives is no longer a novel one. The implementation of docket management processes, including scheduling, pretrial and trial management conferences, as well as an alphabet soup of court-sponsored alternative dispute resolution programs designed to encourage early resolution of cases, all but guarantee that counsel and their parties will have multiple opportunities along the continuum of the litigation process to discuss settlement of their cases.

Indeed, given the ubiquity of mediation and other ADR programs, it is virtually certain, either through the prodding of the courts or the suggestion of counsel, that there will be at least one or more formal settlement opportunities prior to trial. Whether denominated a mediation or a settlement or trial management conference, the question is no longer (as it was in 1990 when I was appointed to the bench) whether the parties and counsel will attempt to reach a negotiated settlement of their dispute under the umbrella of court-sponsored or private programs, but rather when such an effort will take place and who is the appropriate person to guide such discussion—a retired or active judge, a practicing attorney or other ADR professional.

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