Posted on Sep 10, 2018 |Publications

By: Michael R. Rossi, Esq.
August 2018

Without question, proper preparation, whether for an arbitration or mediation, is not just necessary – but vital to a successful resolution for your client.


When preparing an arbitration submission, it must, of course, be treated much as one would prepare for a trial, with an important distinction. At trial, one will be preparing to present a case to a jury: a group of lay people who are unfamiliar with the law and to whom the facts of the case may seem interesting and new. An attorney preparing to address a jury also understands that emotion may play a great part in a jury's decision and will, therefore, plan to present his or her evidence in such a way as to evoke emotion such as shock, pity, etc.

There, of course lies the distinction: when presenting a case to an arbitrator, emotion will have very little, if anything, to do with the decision. That, one could argue, makes the preparation easier. Counsel should get directly to the point, in a logical, precise, well thought out manner, culling out any evidence introduced with the intention of eliciting an emotional response from the arbitrator. Any evidence designed to sway the emotion of the neutral is totally unnecessary.
Just the facts. That's all that's required!


While this article is about the importance of preparation, I will digress for a moment to state that this is also true of summation at arbitration, which – while some attorneys eschew it – I highly recommend. Make certain that you present your position clearly, pointing out your strengths and your adversary's weaknesses with specific references, particularly when presenting medical evidence. Remember, you are summing up to another lawyer who is an expert in the field. Tricks that might work with a jury, such as making disparaging points about the doctors (rather than focusing on their reports), are meaningless. The arbitrator is well aware of the medical community that often finds itself involved in court cases, on both sides of the issue. In other words, you are not going to shock an arbitrator. Stick to the facts!

Further, the submission packet should only include those documents that are necessary to the arbitrator's decision. I am addressing primarily the plaintiff's bar here, as the defendant's submissions will, for the most part, be only those documents which have been procured for litigation, such as independent medical evaluation (IME) reports, photographs and videos, etc. Attaching all medical records in one's possession is pointless. Rather, attach diagnostic, operative and narrative reports, hospital records, bills (a quicker way of knowing how many times a plaintiff has been treated), and any specific record by a treating doctor that requires the arbitrator's attention. Do not haphazardly attach all the records. Make the arbitrators job easier (why aggravate the one person who will be deciding your issue!) and be certain to put each of these items under a separate tab including a table of contents of your exhibits. (Defendants: do not include plaintiff's medical records unless there is something in particular about them which helps your case and which you want to bring to the arbitrator's attention. But in that case, attach only those pages you intend to use and not all of plaintiff's records indiscriminately.)


The preparation of a mediation, on the other hand, requires only a brief discussion. While many attorneys will not feel comfortable unless they have submitted papers to the mediator, this is really nothing more than a function of habit. There is no need for submissions at all when preparing for a mediation. Of course, this does not mean that counsel should not be completely and fully prepared at mediation and have at the ready all relevant facts such as financial numbers, liens and special damages, such as reports of economists, etc. Additionally, photographs, records, reports, and other hard evidence that might support one's position should be on hand as should pertinent information related to the case, such as impending trial dates or dates of the filing of the Note of Issue. However, these things need not be provided in advance. As previously stated, no submissions are necessary in mediation because counsel's opening presentation will provide everything the neutral requires. When you bring your case to a mediator, he or she is an expert in the type of case that will be presented. Within minutes, the neutral will grasp the issues, both factual and legal, and be capable of divining the strengths and weaknesses of each party as they relate to a possible trial of the issues.

Therefore, at mediation, prepare, but do not waste time submitting. This approach will have the added benefit of reducing costs: after all, the mediator will not be billing for time spent if he does not have to review extra arguments and documents. This information will inevitably be presented at the proceeding and will be grasped within minutes by the mediator as well as counsel for both parties.

In sum, whether preparing for an arbitration or mediation, know your audience, know what's required for each forum – and prepare accordingly. Proper preparation may be the difference between success or failure for you and your client.


Michael R. Rossi, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and available to arbitrate and mediate cases throughout the New York Metro area. For the second year in a row, in 2017, he was voted a Top Ten Arbitrator in New York State in the New York Law Journal Annual Reader Rankings Survey.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at or direct dial telephone at 516-941-3228.