In a recent New York Law Journal article, John Siffert and co-author Nelson Timken propose that litigators start to view mediation as another weapon in their arsenal to resolve litigated cases. Often mediations fail because litigators do not seize the opportunity to create an environment that makes it possible to achieve the client’s goal short of “winning” the case.

Virtually every state and federal court in New York now requires civil cases to be mediated. The expansion of court-mandated mediations has meant that litigators need to pivot from zealous trial advocates to counselors capable of recognizing when the client is best served by settling the dispute. This entails learning new skills and approaches to problem solving and embracing a mindset that is open to resolving cases outside of the courtroom.

The authors suggest that litigators have a duty as officers of the court to embrace mediation because courts depend upon mediation programs to keep their dockets current. They explain how mediation has worked in a variety of situations and how those techniques can be applied to litigated cases.

This article is part of an initiative of the New York City Bar Association Alternative Dispute Resolution Committee to encourage mediation advocacy, with a panel discussion on the topic in December 2025.