Mediation should always be attempted

“There are no ‘slam dunk’ cases,” according to Jack Rosati of Bricker & Eckler’s ADR team, “and that risk is the fertile soil upon which compromise grows.”

He emphasizes that mediation should always be attempted. “An acceptable settlement is almost always better than trial for two reasons: cost and risk.”

Rosati’s philosophy on mediation stresses fairness and simplicity. “I try, to the greatest extent possible, to seek a solution that is fair to both parties and is realistic. Typically, barring unusual circumstances, simplicity in the mediation terms is superior to highly complex solutions.”

He believes that mediators do their clients a disservice if they allow their clients’ emotions to trump their economic interests or if they fail to appreciate that what their clients want may be impossible for the opposing party. “For example, it’s important to recognize that, no matter how good you believe your case to be, if the other side simply lacks the funds to pay the amount you are seeking, you must take that fact into account in advising your client.”

Rosati believes that the most important skills for a mediator are empathy for both parties (which includes the ability to discern and shape their goals and expectations), a respectful demeanor, good listening skills, creativity and a deep knowledge of the subject matter.

Rosati is a partner and chair of Bricker & Eckler's Construction Law group. His mediation practice emphasizes construction cases, and he has the experience and ability to evaluate the merits of parties' claims and facilitate settlements.