Getting It Done: Successful Techniques for Mediating New York Labor Law Cases

Previously, we looked at ways that attorneys, clients and claims professionals can better prepare for mediations in New York Labor Law cases. In this article, we will focus on the Labor Law mediation itself. What are the best approaches to Labor Law mediations? How do we increase our chances of success? How do we respond to and hopefully move past impasses?

Decisions on Mediation Formats

One of the many characteristics of mediation is that parties have greater control over when and how they will proceed with the mediation process. Obviously, litigants do not have that kind of control over the court system. Your case will come up for trial when the court says so, and you will need to make that work with your schedule, as well as the schedules of your client and your witnesses. Anyone who has tried a case knows how challenging that can often be. The scheduling of a mediation offers much greater flexibility.

One of the first scheduling considerations is: in-person or virtual? The upside to virtual mediations is obvious and quite compelling: the logistics are just so much simpler. The elimination of travel time makes scheduling easier for everyone. This is especially true on the defendants' side, as their carriers' representatives are often out of state. Technology now allows us to join a mediation in New York City from nearly anywhere in the world, as long as there's Wi-Fi. No plane or hotel reservations are needed —not even a subway ride!

Since most everyone in our profession began using a virtual platform sometime in March 2020, we have all gotten pretty good at it. We know that it can work. But in this election year, let me cast a vote right here and now for in-person sessions. Some may call me “old school” (or maybe just “old”), but I honestly believe that there is no substitute for actually being there. A mediation can be an extremely nuanced proceeding, where the parties, and the mediator, must read one another, to get a true sense of what is really being said or, in some cases, what is not being said. Being in the same room and speaking face-to-face are highly preferable, in my opinion. This is especially relevant in the high exposure cases that we so often see in the New York Labor Law arena. If the logistics are manageable, consider taking the time to schedule an in-person mediation.

A few words about hybrid mediation sessions: they can offer greater flexibility than a purely in-person session by including any number of the parties physically present in the mediator's office, with just a few joining virtually. (NAM's technology on hybrid sessions is quite good; it works seamlessly, and there is excellent IT support). The obvious downside to a hybrid session is that the parties participating virtually can feel that they are missing things, compared to the in-person participants. I have seen this imbalance become a hindrance to a successful mediation.

Do We Need a ‘Defense-Only' Session?

As discussed in my prior article, Labor Law cases are different than garden-variety negligence cases and often require a decidedly different approach to mediation. In many Labor Law cases, the indemnity and priority of insurance coverage issues must be addressed before meaningful offers can be made to the plaintiff. Please note that I said these issues must be “addressed”; I did not say that they had to be resolved first. Only the court or a jury can actually resolve the issues. A mediator must listen to the positions of all of the parties on the indemnification and coverage matters, and then try to guide the defendants, and their clients and carriers, toward a framework within which they are all comfortable extending offers to the plaintiff.

There is no “one size fits all” answer here, but I strongly believe that a defense-only session is often the best option when mediating New York Labor Law cases. The indemnity and coverage issues can be quite complex. They might hinge on whether a general contractor or construction manager was negligent and whether the general contractor or construction manager can still be indemnified or at least partially indemnified under the particular facts of the case. While these arguments are of the utmost importance to the defendants and the carriers, most plaintiff's attorneys simply do not care about them, as long as there is sufficient coverage for the damages alleged. A defense-only session allows the carriers and the defendants to hash out their differences, so that they can present a united front when discussing settlement with plaintiff's counsel. On the other hand, a defense-only session allows the plaintiff's attorney to avoid having to sit alone in a breakout room for hours and hours, without ever hearing a settlement offer. In many Labor Law cases, the defense-only session is better for everyone.

Submissions: What Should You Put In…And What Should You Leave Out?

When I first started handling mediations as an attorney, I rarely prepared submissions. I felt that they were not terribly important because there was nothing that I could put in my submissions that I could not just say to the mediator and the other parties in my opening statement or in a later session of the mediation.

I've looked at mediations from both sides now (apologies to Joni Mitchell) and I must admit – I was wrong. Submissions are important and all parties should take the time to prepare them, especially in more complex cases. (I will pause momentarily here to make a request: please, if at all possible, send your submissions to your mediator at least a week before the mediation. This gives us enough time to read and fully digest your arguments and positions). Mediation submissions give you the opportunity to provide a concise outline of the strengths of your case. This is an outline that the mediator will read before they ever hear a word from anyone at the mediation itself. It is your chance to present your case in an uninterrupted fashion. Don't pass up this opportunity.

As noted above, the submissions should be a concise outline of your case. Cutting and pasting your summary judgment motion into your submissions provides way too much information. Rather, consider your foundational arguments in the case and present them in your submissions in a clear and succinct fashion, with specific references to the supporting evidence. This is key, as every case must be evaluated through the lens of admissible evidence. When referencing that evidence, it is generally more effective to embed the deposition testimony, contractual provision, photograph, etc., directly into the text of your submissions, as opposed to attaching the evidence as a separate exhibit. Everything flows better this way, and your important foundational arguments in the case will be clear.

If your case has obvious weaknesses, you should address them directly in your submissions. Candor is always better than obfuscation here. If, for example, you are defending a case that looks to be a slam dunk Labor Law section 240 claim for the plaintiff, it might be best to admit in your submissions that there is a likelihood that the plaintiff will prevail on liability. This way, you will have more credibility with your arguments on other crucial issues, like damages, indemnity, apportionment etc.

Conversely, if, for example, your client has an undeniable prior medical history, it might be best to concede the prior history in your submissions and then argue that it will not impact the damages claims as significantly as the defense alleges.

Opening Statements

I started trying cases in the early eighties, so my recollection might be a bit hazy, but I don't recall anyone ever waiving their opening statement at trial. Even the most marginally involved parties always had something to say, even if it was just a brief reminder to the jury that the evidence would show their client's complete lack of involvement. So why would you ever waive your opening statement at a mediation? It is your only chance to make a good first impression, so make the most of it.

Your opening does not have to be long and involved. Joe Pesci's classic line in My Cousin Vinny showed us that a very brief opening can be quite effective. Highlight the strengths of your case, as well as the weaknesses of your adversary's case, while always remaining true to the underlying facts. One of the worst mistakes that a lawyer can make in an opening, either at trial or at a mediation, is overstating their case. Whether it is to the jury or the mediator, your opening statement is your promise about what the evidence will show. Always keep your promises.

‘Outrageous Demands' and ‘Insulting Offers'

How often have we heard these or very similar phrases at mediations? I believe that they are poor choices of words, as they do little to advance the mediation process. Always keep in mind that everyone who attends a mediation has the same goal – a settled case. So, wouldn't it be better to use words and phrases at a mediation that convey the same or similar information as these, but do so in a more constructive fashion? Yes, the demand seems quite high for the damages as you see them but a demand is just a starting point. It surely bears some relationship to the place where the plaintiff wants to end up, but it may not be the connection that you think. Telling the plaintiff's attorney that their demand is “outrageous” at the beginning of the mediation often results in all sides digging in their heels, thereby making subsequent conversations more difficult. You can express your disappointment in a demand in a more diplomatic fashion and still get across your point that you view the value of the case very differently.

Of course, the same is true for the “insulting offer.” It is also just a starting point. It might give you some ideas about how the defense values the case, but it is generally a mistake to read too much into initial offers. And always remember: the “insulting offer” is an offer of something, as opposed to nothing, which is where the parties probably were before the mediation. Everyone must bide their time during these discussions. Patience and fortitude will likely yield positive results at a mediation.

Handling Impasse

Most Labor Law mediations start slowly. After opening statements, the mediator will talk with one side or the other first, to explore what sort of movement might be possible, to bridge what is often a significant gap between the demand and the offer. Often, we see a “dollar-for-dollar” back and forth, where the plaintiff's attorney lowers their demand by the same amount as the defendants' initial offer. This rarely works; in order to get things done, something's got to give. How do you get people to move? To change their minds?

• Highlight Your Supporting Evidence: Think about why your demand or your offer is what it is. For example, if your demand is in the high seven-figure range, you presumably have compelling potential expert testimony (physician, economist, vocational rehabilitation counsellor, lifecare planner, union representative, etc.) that justifies your settlement position. Of course, you have already exchanged all of this with your adversaries, but taking the time to highlight the expected testimony at a mediation can show the other side that your initial demand might not be all that “outrageous.” This works for the defense as well, as they presumably have evidence to refute the plaintiff's claims. Your convincing evidence should be readily available to show to the mediator and to the other side. If there's a video, have it cued up and ready to go. If there's an important picture, make sure you can display it for everyone to see.
• Remember Who You Are Trying to Convince (Hint: It's NOT the mediator!): A mediator must remain impartial throughout the proceeding, so convincing the mediator as to the “correctness” of your position doesn't get you where you want to go. You have to convince your adversaries that they are too high or too low, as the case may be. A good mediator facilitates that conversation, and highlights not only the upsides of a settlement, but also the downsides and dangers of a trial. But the decisions about what to pay and what to accept are always made by the parties, so that is your “audience” when you are making your presentations.
• Brackets: This is an excellent way to get the parties away from the “dollar-for-dollar” routine referenced above. As a general rule, a bracket proposal is more effective when one of the parties is the initiator, as opposed to the mediator asking if there is interest in a bracket. So, keep this important tool in mind when mediating significant cases. It is not a sign of weakness! Remember that your goal at a mediation is not a “win” but a settlement.
• Calm Down: These cases often have a good amount of emotion already packed into them, so there is simply no need for the attorneys or the claims professionals to add to this. Don't overreact to things that have been said by the other side. Don't interrupt anyone when they are speaking. Listening is the key to every successful mediation.
• Trust Your Mediator: There are many talented and effective mediators in this town. Presumably you have chosen yours because you believe that they can settle your case. So have faith in your mediator. By this, I mean: work with the mediator by being candid about your positions in the case. When you tell a mediator something in confidence, the mediator is ethically bound to keep that confidence. So, speak freely and be candid, as this allows the mediator to develop the insights that they need to bring about a resolution of the case.

Don't Give Up

So, what happens if we do all of these things at our mediation, but we still don't have a settled case? The first thing that the attorneys should do is schedule a call or meeting as soon as possible with their clients and/or claims professionals, so that they can discuss what happened and see if they can figure out what went wrong. Sometimes, the answers are pretty obvious – someone did not properly prepare for the mediation; one or more of the parties did not properly evaluate all of the evidence in the case; supervisors were not available to consider providing additional authority; emotions got the better of one of the clients, etc. Oftentimes, these problems are not insurmountable, so the parties should always consider having a second mediation session if time allows.

As a general rule, it is best to have that second session with the same mediator. They already have an understanding of the case, and they know the history of the negotiations. Also, if the first session was done virtually, the parties might want to consider meeting in person the second time, for the reasons described previously.

As an attorney, I once mediated a case four different times – all with the same mediator. We finally got the case settled the week before it was scheduled for jury selection. Of course, four mediation sessions can be expensive…but not nearly as expensive or as risky as a jury trial. Labor Law mediations give everyone involved the chance to manage their risks, so that they can end up with the best kind of case that you can have: a settled case.

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Reprinted with permission from the March 8, 2024 edition of the NEW YORK LAW JOURNAL © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com

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Michael B. Titowsky, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer panel and is a highly experienced attorney who focused the majority of his legal practice representing clients in litigation and private mediation focusing on personal injury and labor law matters. Prior to joining NAM, he was a partner in a prominent New York law firm. During his tenure, he handled various personal injury related matters including high-exposure NY labor law, premises liability, motor vehicle, general liability, insurance coverage/indemnity and medical malpractice cases. Mr. Titowsky is available to mediate and arbitrate cases throughout New York State.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or at 646-737-1414 ext. 128.