David W. Ichel has been a full-time mediator and arbitrator since 2016, after spending more than 37 years as a big case litigation partner at Simpson Thacher & Bartlett LLP (New York). He has mediated, mostly to successful conclusion, scores of business disputes spanning areas involving joint ventures and partnerships, M&A, supplier-distributor relationships, trademarks and other IP, healthcare hospital system disputes with payors, pharmaceutical and biologics development contracts, insurance coverage of every kind, lawyers and accountants’ liability, executive employment, banking, securities and mass tort.
Read on as Ichel discusses his approach to mediation.
Q: What motivated you to pursue mediation, and were there personal influences or professional experiences that shaped your path to joining the AAA?
Ichel: I really like people. Even as a litigator, I formed great relationships with counsel on all sides of the disputes in which I litigated and found myself good at building bridges necessary to resolve cases. When I retired from Simpson Thacher & Bartlett LLP, I felt that the natural next step for me was to convert those strengths into a practice as a neutral mediator and arbitrator.
Q: What do you value most about serving as a mediator with the AAA, and what aspects of the work do you find most meaningful for the parties you serve?
Ichel: I really enjoy the lawyers and clients I work with and the amazing feeling of helping them get to a resolution of their disputes. I can speak with both counsel and the clients from the perspective of someone who was in the same trenches they are in now.
Q: How has your previous experience as an attorney, arbitrator, judge, or in another professional role shaped your approach to mediation?
Ichel: Having litigated and settled many cases as an advocate for business clients, I fully understand the service that clients need and what they and counsel are going through. I dig into a case with the same drive to fully understand the case that I did when I was litigating cases, bringing that understanding to build trust with both sides. I am an active listener, trying to understand what is important to each side, and I am persistent at finding a way to help the parties get to "yes."
Q: How do you approach the mediation process, and what strategies do you use to help parties move from conflict toward resolution?
Ichel: I combine facilitative, evaluative, and transformative techniques to help the parties move toward one another. My usual process begins with an initial planning meeting with both sides together, at which we schedule the submission and exchange of mediation statements and key documents (with the ability of each side to submit some material just "for mediator's eyes only"), then Zoom pre-meetings with each party and then a main, all-day or even multi-day mediation session. If the case is not resolved at the main session, I follow up with both sides in shuttle diplomacy via Zoom and phone, and sometimes in person once again, until we bring about a settlement. I use a number of techniques to work to avoid impasse, including good humor! I try my best to get each side to try to see things from the other side's point of view as a way to try to find workable pathways to resolution.
Q: Without breaching confidentiality, can you share a moment or case in your mediation work that was especially rewarding or that highlighted the strengths of the process
Ichel: I advise counsel and parties to "trust the process" because it mostly works and that the investment of time and energy will be well worth the candle.
Q: What advice would you give to advocates or parties preparing for mediation—whether in terms of mindset, process, or practical preparation?
Ichel: I advise counsel and parties to "trust the process" because it mostly works and that the investment of time and energy will be well worth the candle.
Q: Have you noticed any trends or shifts in the use of mediation, the types of disputes, or in parties’ expectations in recent years?
Ichel: Many counsel ask for Zoom mediations, and I am quite happy with and adept at that process. Roughly speaking, about half my mediations are in person and the other half via Zoom or its video equivalent.
Q: Which skills or qualities do you believe are most essential for a successful mediator, and how have you cultivated them?
Ichel: A mediator needs to listen and have empathy for each side. Both are natural for me, but with my years of experience I feel that I have learned to listen better for and feel what is important to each side and where the opportunities may lie to reach common ground.
Q: Outside of your professional work, what activities, causes, or passions are important to you?
Ichel: I teach Complex Civil Litigation, including ADR, at Duke Law School and did so at the University of Miami from 2018-2020. I am an instructor-level scuba diver, and love music and fine wines. I believe in funding scholarships at universities so that all students can afford to attend.