A talent for difficult cases

David Whittaker admits to a special interest in mediating what he calls “difficult” cases.  Those complications might arise from the complexity of legal issues presented, problems with assessing damages and for other similar reasons. But usually, in Whittaker’s experience, the difficulties arise from the acrimony between or among the parties.

“Business and bankruptcy litigation are not happy places to be in general, and the reasons for litigation in these areas often start as or evolve to personal disputes,” says Whittaker. “High emotions make resolution much harder.”

So what does it take to deal with a difficult case?  “The mediator needs to separately and privately understand not just the legal positions of the parties but also their feelings. Letting the parties vent in separate sessions is usually a good start,” he says.  “The mediator should express sympathy that the dispute and the litigation is so difficult – and then begin looking for ways to get the litigation and the dispute resolved.”

David says it’s important to treat the parties with respect and avoid escalating the tension and friction. “I can keep the parties talking, which is ultimately the key to getting a settlement accomplished,” David says. “I push when appropriate but step back at times too.”

David has received training at the American Bankruptcy Institute (ABI) and St. John’s University Law School Mediation program and is certified in domestic relations mediation. He served as a panelist at the ABI Mid-Atlantic Conference in 2012, where he discussed the role of the mediator.

As a partner in Bricker & Eckler’s Creditors’ Rights & Bankruptcy group, he has spent more than 35 years representing insolvent and struggling businesses in restructuring or liquidation. 

David can be reached at 614.227.2355 or dwhittaker@bricker.com.