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.

(1) Preliminary Conference and Scheduling. This process starts with the preliminary conference and scheduling. Counsel should provide the mediator with the pleadings, docket sheets, motion papers, and court decisions before the preliminary conference so that the mediator will have a solid understanding of the case. Counsel should also have their schedules and clients' schedules readily available so that the mediation date can be set at the preliminary conference. It is imperative that the persons on both sides of the case with full authority to settle appear at the mediation. The client representatives attending should know the facts of the case, possess equal decision-making authority and can settle without having to make a phone call to someone else.