Mario Cuomo
Image: Rick Kopstein/New York Law Journal
Editor's Note: The following is an edited version of remarks by Mario M. Cuomo to the College of Commercial Arbitrators at Skadden, Arps, Slate, Meaher & Flom, on Oct. 27.
For years, both in and out of public service, I've worked constantly with the law at the most detailed and the most comprehensive levels.
During the first half of my career as a practicing lawyer and law school teacher, the adversarial process and trying cases were technically my job, but practically, trying cases was an obsession.
In the early years of practicing law, perhaps because of youthful hubris, I seized every chance I could get to try cases. I thought of mediation as a device to be assiduously avoided.
I enjoyed the struggle, the competitiveness, the thrill of victory and the agony of defeat—the court as the coliseum, and my opponent as the lion.
That intellectual kind of combat had a primal attraction for me and for many of us lawyers and politicians, it still does.
Over the years, however, as I've grown in experience I've been able to overcome a number of different primal instincts: an obsession with trying cases is one of them.
I've concluded that litigation can be a kind of failure. After all the trial is, in a way, really nothing more than a refined substitute for the rock, the club, the spear, the gun—and even the bomb: all concessions to our inadequacy, our imperfection, and our inability to resolve our differences in a more intelligent way.
And understanding that, it has gradually become clearer and clearer to me that mediation and other alternate dispute devices like arbitration, are very often the best answer by many measures: they are more practical, they are usually less expensive, faster, easier, more private, and fairer to the client.
For attorneys who agree with that assessment, trials are regarded as the last resort.
I'm sure that's what the trustee in the Madoff bankruptcy and most of the attorneys representing Madoff victims feel.
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