Posted on Feb 10, 2017 |Publications

By: Richard P. Byrne, Esq.
November, 2015

Resolving a dispute through Mediation on the eve of trial presents a unique challenge to the Mediator because the parties' counsel are in the “trial zone” – the zone in which settlement no longer is seen as the goal and, instead, the focus is solely on prevailing at trial. When in “the zone”, both sets of counsel may have difficulty listening to critiques of their respective client's positions. Valid points conveyed may be met by an immediate, snappy and defensive response – without acknowledgment that the point may have legitimacy. Might it be posturing? No doubt. But we know that at some moment close to the commencement of trial, litigators do transition over into this zone – as they must – in order to be prepared to advocate their client's case to verdict.

The challenge to the Mediator is to find a means by which the “trial blinders” can be removed in order to allow for meaningful discussions and effective negotiations. Some suggest having a “negotiating” or settlement attorney attend in lieu of trial counsel. This Mediator does not agree with that approach and believes it is absolutely necessary to have trial counsel present. Even if they are fully immersed in “trial mode”, they, nonetheless, remain the number one resource for the Mediator to utilize in securing factual and legal ammunition to use with the other side. The question is not whether trial counsel should participate but, rather, what is the best method to employ them while encouraging a lifting of the blinders sufficient to allow for a productive Mediation?

In seeking to achieve that balance, the first goal is to secure an admission from counsel that they might possibly, just possibly, have trial blinders on in the first instance. From there, the incremental goal is to press for recognition that, again – just possibly, there is one key issue on which the scales might tip to the other side. The Mediator can then build upon those concessions in an effort to bring trial counsel back to the mindset in which they may have been just a few months earlier, when the issues were not so rigidly viewed and a few inches of territory might have possibly been conceded in the context of a discussion focused on compromise.

Tied to this, at times, is a need to defuse the animosity that may have built up between the parties and/or their attorneys over an extended period of time – recognizing that it may be about to hit a climatic crescendo where one side at trial is going to be deemed “The Winner” and the other “The Loser.” Or there may be a need to have the clients understand that the money which has been incurred in the litigation and, particularly, in recent trial preparations, has not been in vain. It is important to point out to the parties and their counsel that value has been received and that their negotiation posture has been advanced by the investment. Otherwise, resolution on the verge of trial may be viewed as capitulation for which counsel or the client's decision-maker may be questioned and criticized after the fact.

If, despite best efforts, the Mediator cannot reach a breakthrough with trial counsel, they alternatively need to identify through the caucus process someone else at the table who is one-step removed and, therefore, perhaps a bit more objective. Focus and attention should be brought to that person with the intention and hope that he or she will then have adequate influence on the balance of their team and its trial counsel behind closed doors. It becomes telling for the Mediator, of course, when that person begins to take on a more active role and evolves to serve as the spokesperson for the group. It is a clear sign of progress and bodes well for continued negotiations.

No matter how it is achieved, though, a Mediation can only proceed effectively if the trial blinders are lifted and can only succeed if, in the end, a resolution can be crafted which avoids the need for the blinders to again be placed on.


Richard Byrne, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. In 2019, for the fifth year in a row, he was voted a Top 3 Mediator in the country by the National Law Journal Reader Rankings Survey and was also voted a Top 3 Mediator by the 2018 Corporate Counsel Best of Survey. Also, in 2018, for the third straight year, he was named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide. Further, he was ranked a Top 10 Mediator in New York State by the 2018 New York Law Journal Reader Rankings Survey for the fifth year in a row.

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.