Horses for Courses
by Andy Forstenzer , Esq . Chair , ADR Section
Not long after I joined as a senior corporate attorney in a relatively small legal department for a global organization , I was asked to expand my responsibilities to include litigation management for a docket , including cases both within the United States and abroad . This included making decisions to resolve matters without the assistance of outside counsel when able and having to select and retain outside counsel and / or mediators in many of the other matters crossing my desk . It was a broad docket consisting mainly of insurance-related disputes and contract and professional liability exposures .
With little actual litigation experience , I reached out to a colleague who had served as a litigation associate at a large outside firm for some basic education on litigation practices . To this day , the one pearl of wisdom I remember he shared was to realize that even if the issues are similar , not all cases are the same . Each case ultimately had to be judged based upon its specific differing facts and law as well as jurisdictional and / or other issues .
The key , he said , when selecting outside counsel or a mediator , was to realize there are “ horses for courses .” Much like there are certain racehorses that perform better on dry tracks , he said there are others who perform best in the mud . In other words , so is the selection of mediators or outside counsel . While ongoing professional relationships were important , depending upon the many factors impacting the case at hand , I should also consider which individual and / or outside firm had the best talent at the right level and with the right expertise to best represent our interest in each specific matter .
In certain cases , outside counsel ’ s or the mediator ’ s knowledge of the local law might be of paramount interest . In other cases , what was needed most was counsel or a mediator who had a knowledgeable and / or strong and friendly relationship with opposing counsel and / or a particular court ’ s personnel . In some cases , the law was clear but what was paramount was counsel who could best elicit through discovery facts supportive of our desired position or who was most capable of performing in front of a jury or a mediator with the right personality to best achieve success with me , opposing counsel and our respective clients . Some matters required a showing of force best exemplified by utilizing the services of a large , global law firm addressing complex litigation issues and much-needed research , while in others , what we needed most was learned counsel with a stellar reputation in the local court system or an experienced mediator with a certain calm demeanor . The variables were many .
I ’ ve utilized this same approach to address many matters I ’ ve handled over my years in practice , litigation related or not . For example , in reviewing and / or negotiating contracts , in certain situations , what was of the most interest to my business colleagues was being in the game - regardless of other risk or financial features . In other situations , it was our goal to decrease risk , even if it meant lower revenue or generating an option to expand a relationship based on performance versus worrying too much about some of the more minute legal details of the current project . As mentioned above , the variables were numerous , but in every instance , I weighed any number of optional approaches - always coming back to what was the right decision for the particular matter at hand , even if we might make a very different decision on similar issues in other circumstances .
As Chair of the ADR Section here in Sarasota , one thing that has become readily apparent to me as I ‘ ve come to know many of the people in the ADR Section is that their skills and experience as mediators and arbitrators are extremely diverse . While many come from a litigation background and bring this tactical skillset to bear when seeking to resolve disputes , others come from an in-house role and focus perhaps more on the decision — making issues of most importance to the various principals in the dispute . Many members practice family law and focus their mediation practices on family issues . A handful are also
32 | THE DOCKET - FEBRUARY 2025