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The Mediator's View

An Interview with Jonathan Margolis

Jonathan Margolis was a successful defense attorney for many years before devoting his practice full time to the mediation of complex litigation. He is one of the best-known and most successful mediators of complex construction cases. We asked Jon a couple of questions that should be of interest to the parties on both sides of a construction case.

As a mediator who has settled many complex construction cases, how does an imminent trial date influence the mediation process?

Jon: “An imminent trial date hugely influences the mediation process. In fact, it is probably the single biggest factor that aids a mediator in settling a case. The cost, risks and uncertainty associated with a trial, as well as the clients' concern about the amount of time that they will have to spend in court, are issues that almost always are significant enough to drive a case to settlement. Additionally, when trial is imminent, the real decision makers usually are involved in the negotiation process.”

Does a firm's reputation for trying cases, whether defense or plaintiff, have any impact on your ability to forge a settlement?

Jon: “A firm's overall reputation, as well as its reputation for ability and willingness to try a case, is important in the settlement process. This applies not only just before trial, but also throughout the case. Counsels' demeanor, cooperativeness (or lack thereof) and approach to settlement are the main factors in whether a case settles early or not. As trial approaches, the opposing counsel's perception of whether his opponent is prepared and willing to try the case becomes more significant.”

How can an assigned trial judge be a catalyst for settlement?

Jon: “The Judge's approach to the trial process as a whole is yet another huge factor in the settlement process. Judges who are known to have trial dates that “are set in stone”, and do not typically respond favorably to requests to continue, place tremendous pressure on the parties and counsel whether the Judge actually involves himself in settlement discussions or not. The timetable the Judge follows for the trial, for example with pre-trial motions or the trial day schedule, can also place pressure on the parties. Many trial judges repeatedly encourage the parties to continue settlement discussions with the mediator or Special Master. And of course some judges are very good at the settlement process itself.”

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