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Advocacy in ADR

By Joseph F. Ricchiuti
December 23, 2010

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 discusses issues counsel must be aware of to be effective advocates in alternative dispute resolution. We will give a mediator and arbitrator's perspective on these issues. These 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, the article addresses how counsel can effectively represent their clients while still meeting goals of reducing the time and expense of trial.

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