By: Hon. Larry S. Schachner, J.S.C. (Ret.)
New York Law Journal Alternative Dispute Resolution Special Report
“The young advocate would be remiss in not familiarizing themselves with the ever-expanding world of ADR.”
As a fresh out of law school attorney starting out as a litigator with a municipal agency, I was eager to try every case I could get my hands on to gain valuable trial experience – a goal I’m sure many attorneys have during the early stages of their careers. I also realized early on, that not all cases could go out to trial, otherwise the court system would be paralyzed. Instead, when a case reached a settlement it usually did so at one of the numerous pre-trial conferences in court. Back in the 1990’s, when I was a Principal Law Clerk in the Bronx Supreme Court, Alternative Dispute Resolution (ADR) as we know it today, was rarely used as an alternative to trial. Cases being settled in a private forum using mediation or arbitration were novelties. However, in recent years, ADR has exploded onto the scene and has become essential to the resolution of numerous types of civil legal disputes. Prior to my leaving the bench in 2017, it became apparent that due to increases in court calendars and decreases in judicial resources, fewer cases were being sent out for trial. Instead, more and more disputes were being settled using ADR. One side effect of this, is that young lawyers are now faced with fewer opportunities to hone their trial experience. However, with ADR on the rise, one could argue that attorneys should be encouraged to gain exposure to mediation and arbitration as early in their careers as possible.
As a mediator and arbitrator at NAM (National Arbitration and Mediation), I see many different types of cases which rely on ADR. From the basic motor vehicle negligence case to slip and falls, premises liability to more complicated labor law, product liability, medical malpractice, commercial/ business litigation, and employment disputes.
Today, private mediation and arbitration are essential tools for all civil litigators, not just to those entering the practice of law, but to more seasoned attorneys as well. ADR offers young lawyers the opportunity to gain necessary trial experience when they take on commercial arbitrations or negligence actions that go to arbitration. Mediations provide the budding litigator valuable experience in the art of negotiation, which will be useful throughout their legal career. In addition, if the mediation does not reach a resolution, one can still learn from the experience and gain a fuller understanding of the strengths and weaknesses of the case as well as their adversary’s – going through this process can prove to be very useful at trial.
The young advocate would be remiss in not familiarizing themselves with the ever-expanding world of ADR, and it is my hope this article will provide valuable insights into the forum so that they are prepared to utilize mediations and arbitrations to help resolve cases and gain valuable litigation experience.
TIPS FOR A SUCCESSFUL MEDIATION
“Over the years, I have found that the best settlement is one where neither side is completely happy.”
First and foremost, preparation is key – know the file, the liability issues, and the damages. Are there any legal issues that will have an effect on the case? As a young lawyer, I was once told by a mentor that even if I was not the most experienced lawyer in the room, I should still be the best prepared. As a judge and as a mediator I always appreciate a well-prepared attorney. Make sure you do all the necessary legwork prior to the mediation. What’s the insurance coverage? Verify the existence of any liens, workers compensation, Medicaid, Medicare, private medical, and funding liens. Go through the case file to check the history of demands and offers. Talk to the decision makers on your side. Your client must be spoken to, and their expectations must be managed. It’s a good idea to have a conversation with your adversary prior to the mediation to gauge their position. I have seen mediations get bogged down over any one or all of the above issues. Don’t let it happen to you!
I recommend preparing a confidential mediation statement for the mediator. In doing so it will help you focus on the key issues in the case. Drafting a clear, concise mediation statement allows you to get to the heart of the case. If you are submitting an examination before trial (EBT) transcript, do not submit the entire transcript, just the relevant highlighted portions. Make sure the statement is organized and provides all the necessary essentials to the mediator.
At most mediations all sides will initially meet with the mediator jointly to outline their claims in an opening. Each side should take advantage of conducting an opening. If you anticipate emotional circumstances, notify the mediator beforehand – they will be able to anticipate and further diffuse some of the emotion if made aware. The opening allows you to speak to the other side and the mediator directly. Clients should attend the mediation, especially plaintiffs. After the openings, each side should meet with the mediator separately. Put your trust in the mediator, be open with them and acknowledge any weakness in the case. This will help your credibility. Let the mediator know what you want kept confidential. Hopefully, after some back and forth negotiations, all sides will move towards a settlement. One note about settlements: if your client is present at the mediation they should sign off on the agreement.
Occasionally, there will be cases that are contentious, where anxiety levels and emotions will run higher than normal. The parties or the lawyers may need to vent their frustrations. If this is the case, the mediator knows it’s important for all parties to get things off their chest in a private session. This often will help diffuse the situation and allow the mediator to move the negotiations forward toward a fair and equitable resolution.
SUCCESS AT ARBITRATION
“With the number of commercial and international arbitrations on the rise, young attorneys will become more and more involved, offering them a chance to gain valuable litigation experience.”
The purpose of an arbitration proceeding is to streamline the resolution of any dispute under an arbitration agreement. Offering a more expedient, cost efficient and private process, arbitration as opposed to litigation presents numerous benefits to all parties involved. Counsel will have more control over a private arbitration, and the results will remain confidential.
The arbitration proceeding will be based upon the arbitration agreement between the parties. Although subject to modification on consent, the rights of the parties and the responsibilities of the arbitrator, are governed by the arbitration clause. If you are the attorney drafting the arbitration clause you must insure that the terms are clear, comprehensive, and concise. The last thing your client wants to do is end up litigating the enforceability of the arbitration clause in court or before the arbitrator. If this happens, any benefit of having a shorter, more cost-effective process will be lost.
The arbitration of a commercial dispute can have many of the characteristics of civil litigation in court including discovery, motion practice, and interim relief. However, with the assistance of the arbitrator, it will have an expedited pace, with the parties exercising greater control over the process.
Commercial arbitration is trending upward. The legal community is experiencing an exponential increase in the use of arbitration to resolve many business and employment disputes. With the number of commercial and international arbitrations on the rise, young attorneys will become more and more involved, offering them a chance to gain valuable litigation experience.
Additionally, in personal injury litigation, arbitrations are frequently used to resolve numerous motor vehicle and other negligence claims. Parties will usually have the protection of a “high-low” agreement, and in general the decision of the arbitrator will be final. In addition to serving as a mechanism by which to resolve cases, arbitrations are a unique opportunity for young lawyers to gain trial experience. Through arbitration, attorneys can sharpen their skills in a variety of areas of trial practice, from opening statements, direct and cross examination, to summations. As previously noted, preparation is key, and the legal practitioner must carefully go over their document submissions with the arbitrator.
Young lawyers take note: while caseloads increasingly create a backlog in our court system, ADR will remain vital to the resolution of civil legal disputes. Unquestionably, we will continue to see the growth of both private mediation and arbitration in the coming years.
Reprinted with permission from the November 26, 2018 issue of New York Law Journal © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Hon. Larry S. Schachner served as a judge in the State of New York for nearly 20 years. He began his judicial career presiding over New York City residential landlord-tenant cases before being elected Judge of the Civil Court. In 2007, he was appointed Acting Justice of the Supreme Court and in 2014, he was elected as Justice of the Supreme Court. Judge Schachner has handled a wide variety of case types that include labor law, medical malpractice, municipal liability, negligence, premises liability, real estate, tort and professional and product liability and personal injury matters. He was also voted a Top 10 Arbitrator in the 2018 New York Law Journal Reader Rankings Annual Survey.
For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at email@example.com or direct dial telephone at 516-941-3228.