Hon. John P. DiBlasi

Author: John DiBlasi

  • Making the Most of the Joint Session at a Mediation – 7 Do’s and Don’ts

    Here are some do’s and don’ts which lead to a more effective joint session of your mediation: Do engage in a realistic discussion of the strengths and weaknesses of your case.

    • Do not spend time posturing to impress or intimidate.
    • Do recognize that every case is unique.
    • Do not lump your case in with similar matters that may have relevant differences. Do engage in a give and take of views.
    • Do not rush the discussion in the joint session.
    • Do take the time to listen to the other side.

    No two cases are the same. The joint session of the mediation is the best opportunity for the parties to speak face to face and engage in a realistic discussion of the strengths and weaknesses of their case. Counsel is best served by engaging in an objective, straight forward discussion of the uniqueness of the case at hand.

    It is commonplace for counsel to extol the virtues of their own legal skills in achieving amazing results for their clients in other matters. As always past performance is not predictive of future results and what is telling is that such an advocate never speaks about their losses. Time expended in this manner is usually nothing more than egotistical posturing, often designed to intimidate but more likely to aggravate and impede the process. Engaging in this type of discussion is simply a waste of time. Counsel is better served by engaging in an objective straight forward discussion of the uniqueness of the case at hand.

    Sometimes counsel, on an anecdotal basis, develops guidelines with respect to liability and damages in certain types of cases. It is of greater importance to address the application of certain similar facts to rulings on dispositive motions, evidentiary rulings during trial or on other significant legal issues decided on appeal.

    The joint session should not be rushed. Many times the parties do not want to engage in a process where their views are exchanged in detail with the other side; or they want to cut the joint session short and move as quickly as possible into caucusing privately with the mediator. What the parties often fail to understand is that the mediation process is about taking the time to engage in a “give and take” and to exchange views with the other side. It is to the benefit of all parties to have a good understanding of the other’s position. Often the parties in the joint session will repeat their arguments over and over again in many different ways. While, at times, this process may become tiresome, in actuality, there can be a lot of value in it. Despite the redundancy, new facts may come out and a better understanding often comes about as to the other party’s position.

    So take the time to really listen and do not rush the joint session. So if you want to have a useful joint session, turn off the rush to get to the end, and turn on the ability to take the time to mediate.

  • Maximizing Your Potential for Success at Mediation

    INTRODUCTION

    There is no better way to settle your case than through mediation. The purpose of this article is to make suggestions to maximize your opportunities for success. As a full-time mediator, by virtue of sheer volume, you are involved in the resolution of more cases in one month than most attorneys are in their entire career. Because of that experience, you begin to observe distinct patterns that serve as a guide to what counsel can do to make the most of this process. Many lawyers and their clients do not fully understand the process, which leads to numerous mistakes that often doom their best efforts (and those of the mediator) to bring the case to a successful resolution. This article will focus on the process itself, what can be done to improve your chances for success, and what mistakes may be avoided.

    PREPARING FOR THE MEDIATION

    The success or failure of the alternative dispute resolution process is all too often predetermined. Whatever the nature of the case, counsel’s preparation will often govern whether the process is successful or not. The parties should carefully review the mediation agreement and any written guidelines presented by the mediator. The strategy should be to position the case for settlement in advance. One of the first questions I ask the parties is: “What gave rise to the mediation?”Surprisingly, most parties often give answers like: “I thought it would be a good idea”, or “The other side wanted it.” Often times, the latter assertion is then denied. This belies the fact that often insufficient preparation and thought is given to the process in advance. The preparation for mediation should be similar to the preparation that one would engage in for trial. Know why you are there, understand where you want to finish, and make sure your clients are well informed.

    Creation of Parameters

    Frequently, the parties do not discuss any parameters for the mediation in advance. The initial session then becomes bogged down by the issue of what the demand/offer was prior to the time the parties came to the mediation. This can often lead to a breakdown of negotiations and ill will.

    Parties should not agree to mediate unless they have a good faith belief that the case has a chance of settling. While this is not an exact science, specific demands should be communicated in advance, along with any offers made in response. The parties often come to the mediation where no demand or offer has been communicated, there is a disagreement as to same, or off-the-record discussions have led to complete confusion regarding the parties’ positions. The best way to avoid this is with clear communication, preferably in writing, confirming discussions of the parties. At minimum, this will avoid situations where the defendant is hearing the plaintiff’s demand for the first time during the joint session of the mediation.

    Demands communicated in advance are often met with a refusal to make a counter offer unless the demand is immediately reduced. Such a position by the defendant should be communicated prior to the mediation. The process should not be utilized to bring a party to the table where there is no intention of responding to demands, and with the hope that the mediator will compel the other side to reduce same without an offer. There is also the scenario where a demand has been communicated in advance by the plaintiff only to have it increased at the outset of the mediation. Often it is the parties’ expectation that the mediator will somehow be able to take a case where any or all of the above risk factors exist and bring it under control. While this may be possible, conduct such as this should be avoided.

    Finally, if a demand has been made prior to the mediation and a significant factor comes up that may impact the negotiations (such as a change in the claim for damages), this should be communicated in advance. It will give the defendant the opportunity to re-evaluate its settlement position, and to determine whether the mediation should proceed.

    Submission of Briefs

    In the majority of cases, briefs are submitted. Under most mediation agreements the parties are free to submit same confidentially for the mediator’s review alone.

    Counsel often do not read the mediation agreement (which sets forth the rules for submissions) and are taken by surprise when a party has appropriately given the mediator a confidential submission.

    Unless you are conveying critical information that you wish to withhold for trial, you should exchange the brief with the opposition so they might better understand your position in advance. Care must be exercised in communicating critical information that is being withheld for trial even when this information is being provided to the mediator. Further, despite the rule allowing confidential submissions, when one party has exchanged their mediation brief and the other has chosen not to, it tends to breed distrust.

    Briefs frequently resemble motion papers I reviewed as a judge. Many are completely redundant and premised upon the assumption that the more an argument is repeated the more likely it will be accepted. This should be avoided. The brief should be simple and clear, and designed to educate both the opposition and the mediator as to the basic principles of your position. Parties often submit kitchen sink attachments containing exhibits that are not necessary. This should also be avoided. The further in advance the brief is submitted the better for all concerned, as this allows sufficient time for review and consideration.

    Presence of the Client at the Mediation

    Counsel frequently face the decision of whether or not the client should be present at the mediation. Whether the client is the CEO of a corporation or someone suing in their individual capacity, most have an emotional investment in the case. I’ve mediated cases in numerous states including Connecticut, Florida, Illinois, Massachusetts, and Nevada, where it is expected if not required that the client be present. Although this is not the case in New York, the person with the ultimate authority to settle the case should be present. It is important for the party to be present during settlement discussions to better understand same, and for the mediator to speak directly with them if needed. If your client is going to testify at a trial and makes a good presentation it behooves counsel to have them present to meet with the opposing party’s representatives.

    Counsel should never assume that the party will be present. If this is a condition to the mediation, it should be set forth in the mediation agreement as it will avoid one of the parties walking out in the other party’s absence. Attorneys often do not bring the client as they fear they will be antagonized by the process. While this is understandable, the benefits usually outweigh the risk. Further, when one side brings their client and the other does not, it creates an issue of trust based on whether counsel has the authority to settle the case.

    Preparing the Client

    Preparing the client for the mediation itself must be approached with the same seriousness as preparing them for trial. Assuming the client has limited or no familiarity with the ADR process, you must explain why the mediation is being conducted, the benefits of the alternative dispute resolution process, what the role of the mediator is, how the mediator is selected, and how mediation is conducted. Many clients equate mediation to a trial; in other words, a win-lose proposition. They do not clearly understand the advantages of the process as opposed to the court system, view the mediator as a judge as opposed to a facilitator and negotiator, do not understand how the mediator is selected, are not familiar with his or her background, and do not understand how the process itself is conducted. All of these areas should be discussed with the client in advance.

    Counsel must explain to the client that everyone will have to compromise their settlement position and that even if both parties make concessions that does not mean that the mediation will result in a settlement. If the client is properly prepared and understands the process it makes it much easier for the attorneys to gain their acceptance of a compromise, and, if called upon, for the mediator to discuss the merits of the proposed settlement with them.

    Demonstrative Evidence

    The complexity of the case will determine what demonstrative evidence may be brought to the mediation. Bringing exhibits that have been prepared for presentation to a jury conveys the impression that the party is serious about trying the case if the mediation does not result in a settlement. While this may or may not impress, in complex cases I have seen the effective use of same and the use of PowerPoint presentations that organize and simplify the many components of the case for the purposes of presentation at the initial joint session.

    JOINT SESSION

    The joint session is the first opportunity to present one’s position in person to both the mediator and opposing counsel. This is rarely waived, although there are instances when the attorneys have had such extensive pre-mediation negotiations that they ask to split up immediately and talk to the mediator separately. There is also the rare circumstance where the hostility between the parties is so great that they waive the joint session, as they do not want to be in the same room together. This leads to the question as to why they agreed to the process in the first place.

    Presence of the Client during the Joint Session

    If the client is at the mediation, whether they should be present during the joint session must be decided. Outside of the State of New York, the presence of the party is expected, if not mandated, at the joint session. In the State of New York in many cases corporate representatives will be present but the individual plaintiff will not be. In making a determination as to whether the client should be at the session, there is usually a direct correlation between emotional involvement and the likelihood of the client becoming antagonized by hearing opposing counsel’s opening statement. If there is any chance of this, it is my opinion that they should be excluded from the joint session. It will be more difficult for counsel to get the client to compromise if they feel that their veracity is being questioned. However, in some cases having the client present can be useful. Hearing from the opposite side the basis of what their position is can lead to better understanding of the weaknesses of their case, as long as this is presented in a respectful manner.

    Frequently when the client is present during the joint session, counsel may engage in grandstanding. Understandably, it is necessary to make one’s client feel that their counsel is a true advocate for their position, but an overzealous presentation can antagonize the opposing side and inflate your client’s expectations with respect to settlement. A careful balance must be struck in this regard.

    Communication of Settlement Position

    Many people do not want to confront another person directly when involved in a real conflict. However, the person on the other side of the table is the one you have to convince to compromise. It is more important that the communication go back and forth directly between the parties during the joint session. You will have ample opportunity to lobby the mediator during the break out session. Parties come to the mediation with the assumption that after years of litigation they understand the position of their adversary and vice versa. While this is sometimes true in part, it is never wholly true. The factors that a party believes supports their view of the dispute are sometimes being heard for the first time by the opposing party. It is far better to address the opposing party directly and to explain your position, than to attempt to make what becomes an oral argument to the mediator as if he were a judge deciding the case. Again, a mediator understands that attorneys are attempting to sell them on the strength of their position so that he or she will push the opposition towards a settlement, but this is not necessary, as the mediator will do this as a matter of course. The human dynamic requires that communication take place between the parties. The attorneys most adept at settling cases understand this fundamental fact. It is particularly useful to end your presentation by saying that you are there in good faith to settle the case, to listen, and to give fair consideration to the position of the other side. While this may sound trite, it is critically important as it sets the tone for the continued negotiations.

    BREAK OUT SESSIONS

    The Client and the Mediator

    One of the first things counsel must consider is whether the mediator should meet with their client and at what point that should occur. From my experience, if the client is not present at the opening session, the first meeting should take place as soon as possible thereafter. It gives the mediator the opportunity to explain the process, his role and experience, and how the day will progress. The mediator will have some basis to assess how the client may appear before a jury and it is an opportunity for the mediator to build a rapport with the client in the event that the mediator must speak to them later in the process regarding proposed offers. At the same time, counsel should use the mediator to emphasize that both sides will have to engage in compromise to achieve a resolution. The meeting with the mediator also gives the client an opportunity to tell their story. From my experience as a Supreme Court Justice, one of the biggest complaints in court made by litigants is that they were never heard before entering into a settlement agreement. The ability to tell the mediator their version of the case is unique to the mediation process and one of its most valuable aspects. It gives every litigant what they want, which is a chance to be heard by a neutral party and voice their feelings. This can result in the client becoming more willing to compromise, and it also gives the mediator a better understanding of the case, which can become critical in facilitating the negotiations.

    During the course of the breakout sessions, the parties should consider using the mediator to speak with their client to explain what has transpired in the process and what factors should be considered in making a decision with respect to the settlement. What is not advisable is to have counsel attempt to bolster what the mediator is saying and strong-arm the client in the mediator’s presence. It often embarrasses and angers the client, and defeats the purpose of having a neutral give a candid opinion on the status of the negotiation. It is ineffective for the mediator to push the client hard as people generally just do not respond to that sort of pressure. My tactic is to suggest to the client that they are well represented and should give the advice of their counsel serious consideration. Their attorneys are then in a position to use the factors explained by the mediator to move the client towards acceptance of a settlement that they believe is advisable. No matter how many times you tell the client that you are not a judge, they view the mediator as same and expect you to be fair, impartial and level.

    Clarity in Communication

    In communicating with the mediator, counsel should be exceedingly clear on the message that is to be conveyed to the opposing party. I take great care in clarifying what it is that counsel wishes to convey to the opposition. If you are not clear, and the mediator is not clear, this will result in a serious misunderstanding that can lead to the breakdown of negotiations. I will often pose the open-ended question of what it is exactly that counsel wants me to communicate to the opposing side. The response often heard is “Phrase it in any way you deem appropriate.” Mediators will routinely do this but it may become a dangerous proposition for both the party and the mediator. Attorneys fixate on the words of the mediator and exactly what is being said. They often write down exactly what was said by the mediator and convey it to their clients. Any error in this fashion on either side can compromise the negotiation. Great care then must be taken in exactly what you intend to communicate through the neutral, so that he may exercise his discretion accordingly.

    There reaches a point in every mediation where the mediator has a clearly defined sense of what each party is willing to do to get the case settled, but is not authorized to communicate that information in a specific way. The techniques that I use to convey this message are tailored to each mediation. While this is always useful when the parties are getting close to a resolution, it is important for the mediator to make clear that this is not an offer but a range of discussion. The parties usually read between the lines, but again, exercise care in how you authorize the mediator to communicate generalized positions.

    Finally, if you suggest a proposed settlement to the mediator, be sure you have the approval of your client. You compromise your credibility and that of the mediator when opposing counsel has agreed to the proposal only to find out that your client will not consent to same.

    Evaluation by the Mediator

    During the course of breakout sessions, attorneys on both sides want an evaluation of the case. It is better to give the mediator the opportunity to speak to the clients and go through several breakout sessions to fully understand the respective positions before giving an opinion. Parties must remember that while a mediator will apply significant pressure to each side to produce a settlement, he is not an advocate for either side, but an advocate for compromise and resolution. The mediator is tasked with maintaining a position of fairness while attempting to get the parties to understand the position of the other side. This is the most critical part of the mediator’s function. The position advanced during the break out sessions becomes more significant than what was advanced in the joint session. There is an evolution in the negotiation process where a good mediator will become aware of factors that both sides have not considered, or lesser factors that take on a greater significance. The parties should make use of this time to narrow the points they’re trying to make and to communicate in a structured fashion. Finally, if you ask the mediator for an evaluation, please listen. A mediator is often confronted by a party who is not hearing what they want to hear and refuses to consider it. If you ask for an opinion at least give it consideration. Further, whether asked for an evaluation or not, a mediator is going to discuss the factors that you should consider in settling the case. Again, listen, whether or not you like what you are hearing.

    Effective Use of Time

    The greatest ally of the mediator and the parties during the course of the mediation is time. While my personal style is to take control of the mediation and to move it quickly and efficiently, there is no doubt that the parties need adequate time to consider the demands and offers being made and to be given a real opportunity to reflect on same. Parties completely wedded to their positions are more likely to compromise if given sufficient time to consider the demand or offer being made. There is often “buyer’s remorse” at the end of mediation, but this happens less often when the parties had adequate time to make their decision. Additionally, if a party has to capitulate, the “loss of face” is a problem the mediator must manage. The more time that passes, the easier it becomes for a party to soften their position.

    IMPASSE

    Breaking the Impasse

    The negotiation process should always be one of movement. I often hear the excuse that another offer will not be made because counsel does not want to insult the other party. As an attorney once said to me: “If they keep insulting me, we will probably get the case settled.” Even if the concession is slight, this will keep the dialogue moving forward. In many cases the prospective “insult”continues the process and leads to a dialogue where a settlement is reached.

    When the parties reach an impasse in negotiations, it becomes incumbent upon the mediator to slow the process and encourage the parties to continue negotiation. Counsel will often become angered by an unacceptable move late in the mediation and will want to walk out without further discussion. Often this is an egocentric knee-jerk reaction, which results in the lost opportunity to take one last crack at the negotiations which may often break the impasse and lead to a settlement.

    No matter how effective the mediator is at conveying the position of the other side, a filter is inevitably created. No matter how clear the mediator may be in transmitting the position of the parties, nothing is as effective as the parties speaking directly. At this point, the parties should follow the mediator’s suggestion to reconvene in a joint session and talk face to face. In observing the‘impasse process’ at countless mediations, in my experience it may be broken simply by bringing the parties back to the negotiating table and insisting that they continue to talk. Communicating face-to-face will often soften resistance. The important thing is to accept the mediator’s recommendation that you meet in person and not merely walk away from the bargaining table.

    In the event the impasse cannot be broken, if the neutral does not do so automatically, the parties should request the mediator to summarize the status of the negotiations for two purposes. The first is to ensure that the parties are clear on what the final demand and offer is. It should also be made clear that during the negotiations any generalized suggestions as to range of settlement are just suggestions, and not demands or offers. Second, the parties should be reminded of the confidentiality provision contained in the agreement to mediate, and that unless consent is given the negotiations are not to be discussed before the Court. Obviously, this is something that a mediator cannot enforce, but parties should be reminded of their ethical obligation to abide by the terms of the mediation agreement.

    POST-MEDIATION AGREEMENT

    When the Case Settles

    The post-mediation agreement should be executed before the parties leave. It should be reduced to writing and carefully encompass all of the terms of the settlement. While the case may be in litigation, and the settlement subject to the exchange of a satisfactory stipulation of discontinuance and general release, it is the better practice to have the client sign the post-mediation agreement in the presence of the mediator. As discussed supra, upon leaving the mediation, clients often experience “buyer’s remorse.” I know instances where some refuse to proceed with the settlement because of this. The post-mediation agreement serves as a basis to enforce a settlement. It also protects counsel from a client who denies that authorization to enter into same was given.

    Many times once a verbal settlement agreement is reached, one of the parties will begin to add conditions to the settlement that were not raised during the mediation process. It begins an entirely new mediation devoted to dealing with terms that were not contemplated. Counsel and mediator should specifically raise the issue of any special conditions before a final settlement is agreed to. However, I have had instances where despite my inquiring regarding same, counsel has withheld terms and conditions that the settlement is contingent upon. To conduct the negotiation in such a fashion is, at minimum, bad faith.

    WHEN THE CASE DOES NOT SETTLE

    As discussed supra, it should be explained to the client that the process is not a trial, and that this is not a win-lose exercise. One of the reasons to do this is to avoid the client feeling that they’ve experienced a loss when the case does not settle. The mediator and counsel should stress to them the fact that many mediations do not result in a settlement and that it is not a reflection on their case. It is just the position of the parties at that time which cannot be sufficiently compromised to reach an agreement. Counsel must understand the same thing, to wit, not every case can be settled via mediation. However, all mediations are productive even if all they do is open the lines of communication and give each side the opportunity to clarify their position to opposing counsel.

    I have never found it to be productive for counsel to end the mediation with their colleagues in a hostile manner. I understand the immense frustration that the parties may experience when a case does not settle or they do not like the way the negotiations progressed. Counsel should commit to keep the lines of communication open and hopefully in the future the dialogue can be continued. It never serves a party to leave mediation in a hostile manner where words are exchanged that can never be taken back. The mediator must keep this phase of the process as productive and calm as possible by attempting to show that, despite the fact that the case is not settled, progress has been made. My practice is also to follow up on every case that I mediate which does not settle. I offer the parties the opportunity to continue negotiations informally, without further expense. My experience has been that by reaching out to the parties after they have had time to absorb what took place during the dispute resolution process, it will trigger further negotiations that in the majority of times will lead to a settlement. Counsel should always avail themselves of any offer by the mediator to continue negotiations.

    CONCLUSION

    It is always my hope that every case that I mediate will settle, but that is not realistic. This article cannot in any way encompass all of the numerous factors that will lead to a resolution at mediation. Hopefully it will serve as a starting point to lead counsel through the process, and hopefully maximize the opportunity for success.

  • Preparing Your Witness And Yourself For A Trial or Arbitration

    During my fifteen years as a Judge, I have heard the testimony of hundreds of witnesses in all types of proceedings. As a trial attorney in private practice, I prepared a great number of witnesses to testify. Even with the best preparation, my father, who was a great trial lawyer, would say he would die a thousand deaths when he heard his witness deviate from everything that had been pored over in terms of prospective testimony. The witness would become a different person or come up with some new fact (either invented or true) that came as a complete shock.

    We, as attorneys, so often believe that it is our performance in the courtroom, or the arbitration setting, that dictates results. Certainly there is merit to that belief. There is nothing like experience and sharply honed skills as an advocate. One can see that such skill will, to a degree, affect the outcome before a jury, judge or arbitrator.

    I rarely talked to jurors after trying a case as a trial attorney. My sense was that most often I was getting a filtered version of what went on in the jury room or that I was being told what I wanted to hear. As a Judge, however, I would often speak to jurors after the trial, if given the opportunity. My take away was that, as lawyers, we were more functionaries in the system. In the end, the jury made their decisions based on their perception of the witnesses and, more importantly, whether they liked your client or not. Yes, I know the power of a great opening statement or closing argument and everything that falls in between. However, at the end of the day, it all comes down to the performance and likeability of your witnesses. The jurors could love or hate a particular lawyer, but the most often cited reason I have heard for the basis of a decision is the testimony of the witnesses.

    Preparing the Witness

    In an arbitration, your “Jury” (the arbitrator) is far tougher and less forgiving than a group of lay people. The arbitrator or panel can apply the concept of Falsus in Uno (false in one – false in all). This allows the fact finder to reject testimony in its entirety based upon a falsehood or accept so much as he/she deems to be credible and reject the rest. Witness preparation becomes all the more critical in front of the “professional” juror who knows all of the jury charges on credibility and will apply them.

    Given all this, I have found that all too often witnesses at arbitrations are often not as well prepared as they would be at a jury trial. Over time, I have become convinced that this has become a function of the informal nature of the arbitration forum versus that of the traditional courtroom setting. The rules of evidence and procedure are relaxed in an arbitration. However, just because the forum does not have the formality of the courtroom setting doesn’t mean that an advocate should conduct themselves any differently. In fact, the issue of credibility may be even more critical given that it will be judged by an experienced neutral who is familiar with all facets of the law.

    For those who prepare witnesses on a regular basis, this article may be simplistic. However, what I have learned, over my career, is that there is nothing like getting back to the basics and breaking down what you’re doing. Coach John Wooden, who won more NCAA championships than any other college coach, always preached that preparation begins with tying your shoes properly. So let’s talk about the basics to make sure our shoes don’t come off at the trial.

    Preparing Yourself

    So where to begin? My law school dean and professor used to say after asking a question “anyone with a grasp for the obvious.” Before you prepare any witness to testify in any forum, you first better prepare yourself. That starts with thoroughly reviewing your case file. Do you understand all of the facts surrounding the case from the point of view of both sides? Is it at your fingertips? Have you reviewed the applicable law? If it is a jury trial, what is your request for charge going to be? Are you going to ask to submit proposed findings of fact and conclusions of law if this is an arbitration? What is the theory of your case? This all begins with a thorough review of the pleadings.

    All too often, I have seen attorneys who have wasted time proving admitted facts or have failed to realize that they have to prove those that are denied. What affirmative defenses have been asserted? Sometimes its boilerplate and other times not. One of the worst experiences that I had as a judge was to have to dismiss a legal malpractice action that was based upon the failure to timely file the action within the statute of limitations. The affirmative defense sat there like a time bomb waiting to go off and, in the days prior to jury selection, the ability to serve and file the complaint nunc pro tunc expired permanently, thereby barring the action.

    Scrutinize all of the discovery demands and responses. Have you disclosed what you have been required to? Is there any possibility of preclusion against you? What has your adversary disclosed? Are there any motions in limine to be made based upon a complete review of everything contained in the case file? Keep in mind that while the rules of evidence and procedure may be relaxed in an arbitration, an arbitrator or panel will not look kindly on any evidence that should have been the subject of a discovery response when it comes up for the first time during the hearing. If it is not precluded outright, it certainly will affect its weight.

    The components of preparing the witness to appear and answer questions will be addressed in a future article.

  • Seeking an Evaluation from the Mediator and the Pre-Mediation Brief

    In the majority of cases, the parties to mediation ask the neutral for an evaluation of their case. This will encompass an analysis, inter alia, of the factual allegations, defenses, and issues of law, motion practice/decisions, venue/jury pool, and an evaluation with respect to jury verdict potential. The mediator will be making an assessment of the evidence to be presented and will give an opinion with respect to the credibility of potential witnesses based upon a variety of factors, including but not limited to, interest in the outcome of the proceeding, strength of deposition testimony, and whether such testimony will be supported by documentary and real evidence. It is to your advantage to give careful consideration as to the information provided to the mediator before the session.

    The goal of counsel in advance of the mediation should be to educate the neutral as much as is reasonably possible with respect to the status of the litigation, facts of the case, the relative positions of the parties, issues of law, and damages sought. It is to your benefit that the mediator be properly informed prior to the mediation as it will lead to the savings of significant time during the course of the session, a better understanding of your position and allow the mediator to make a reasoned evaluation of the case.

    The process of ensuring that the parties will get an informed evaluation begins with the brief submitted prior to the mediation. In any complex matter, the parties should submit a mediation brief to give the mediator an opportunity to analyze the matter before the mediation session. It is to your benefit to submit your brief well in advance of the mediation to give the mediator ample opportunity for review and to consider the arguments of the parties. The brief should contain a summary of the position of the submitting party with respect to the issues in the case. The submission of pleadings, exhibits, motions, decisions of the court and deposition testimony alone without a summary is not an effective way to educate the mediator as to your position which is to your advantage. The brief should incorporate exhibits which are critical to the understanding of the case. The exhibits submitted should be carefully referenced in the summary in the brief itself and relevant portions should be highlighted.

    All too often, the briefs submitted prior to mediation are pure advocacy without a balanced reflection upon the potential evidence to be presented if the case were to go to trial. In an attempt to persuade the mediator as to the efficacy of the party’s position, the brief becomes unduly lengthy and redundant. It is to counsel’s advantage to submit a clear and concise brief which represents a balanced presentation of the facts that not only stresses the strengths of your case, but also acknowledges its defects and addresses them. While it may seem counter-intuitive, this is to your benefit. A balanced brief will enhance your credibility with the mediator. This is similar to the jury selection process wherein a knowledgeable trial attorney will make the jury aware of the problems in their case in advance so to avoid credibility issues as the negative evidence is presented. By the same token, this gives the mediator the opportunity to consider both the strengths and weaknesses of your case and to understand how you are going to address the weaknesses. By doing this, you give the mediator time to consider these issues in advance of the mediation. Additionally, you gain credibility with the mediator by presenting a fair view of the case and one that is not slanted solely to your side.

  • Seeking an Evaluation from the Mediator and the Pre-Mediation Brief

    In the majority of cases, the parties to mediation ask the neutral for an evaluation of their case. This will encompass an analysis, inter alia, of the factual allegations, defenses, and issues of law, motion practice/decisions, venue/jury pool, and an evaluation with respect to jury verdict potential. The mediator will be making an assessment of the evidence to be presented and will give an opinion with respect to the credibility of potential witnesses based upon a variety of factors, including but not limited to, interest in the outcome of the proceeding, strength of deposition testimony, and whether such testimony will be supported by documentary and real evidence. It is to your advantage to give careful consideration as to the information provided to the mediator before the session.

    The goal of counsel in advance of the mediation should be to educate the neutral as much as is reasonably possible with respect to the status of the litigation, facts of the case, the relative positions of the parties, issues of law, and damages sought. It is to your benefit that the mediator be properly informed prior to the mediation as it will lead to the savings of significant time during the course of the session, a better understanding of your position and allow the mediator to make a reasoned evaluation of the case.

    The process of ensuring that the parties will get an informed evaluation begins with the brief submitted prior to the mediation. In any complex matter, the parties should submit a mediation brief to give the mediator an opportunity to analyze the matter before the mediation session. It is to your benefit to submit your brief well in advance of the mediation to give the mediator ample opportunity for review and to consider the arguments of the parties. The brief should contain a summary of the position of the submitting party with respect to the issues in the case. The submission of pleadings, exhibits, motions, decisions of the court and deposition testimony alone without a summary is not an effective way to educate the mediator as to your position which is to your advantage. The brief should incorporate exhibits which are critical to the understanding of the case. The exhibits submitted should be carefully referenced in the summary in the brief itself and relevant portions should be highlighted.

    All too often, the briefs submitted prior to mediation are pure advocacy without a balanced reflection upon the potential evidence to be presented if the case were to go to trial. In an attempt to persuade the mediator as to the efficacy of the party’s position, the brief becomes unduly lengthy and redundant. It is to counsel’s advantage to submit a clear and concise brief which represents a balanced presentation of the facts that not only stresses the strengths of your case, but also acknowledges its defects and addresses them. While it may seem counter-intuitive, this is to your benefit. A balanced brief will enhance your credibility with the mediator. This is similar to the jury selection process wherein a knowledgeable trial attorney will make the jury aware of the problems in their case in advance so to avoid credibility issues as the negative evidence is presented. By the same token, this gives the mediator the opportunity to consider both the strengths and weaknesses of your case and to understand how you are going to address the weaknesses. By doing this, you give the mediator time to consider these issues in advance of the mediation. Additionally, you gain credibility with the mediator by presenting a fair view of the case and one that is not slanted solely to your side.

  • The Commercial Arbitration – The Single Arbitrator versus the Tri-Panel

    Over the years, I have had the opportunity to preside over numerous commercial arbitrations of all types. I have done so as the sole arbitrator and also as a member of a tri-panel. The decision to use a single arbitrator versus a tri-panel is a critical one.

    The decision as to the use of a single arbitrator or a tri-panel depends on, to a great extent, the type of case being presented. Having served as a Presiding Justice of the Commercial Division of the New York State Supreme Court, it is my belief that the majority of commercial cases are ill- suited for disposition by a jury due to the complexities involved. One of the significant advantages of arbitration over a trial is that the parties have the opportunity to select the trier of facts and the judge of the law. In a case that is not appropriate for a jury, this is a distinct advantage for both sides. Further, the goal of the arbitration is to save the greater associated with a trial. The parties have the opportunity to do research with respect to the prospective arbitrator/arbitrators and to do an extensive conflict check in advance. Concurrent with this part of the process is the determination as to whether a single arbitrator or a tri-panel would be more appropriate to decide the case. Both have their advantages and disadvantages. Two factors should be considered: efficiency and minimization of cost and single vs. collective judgment. Given the finality of the arbitrator’s(s’) decision, a careful decision should be made.

    With respect to the first factor of cost and efficiency, it is easier for one arbitrator to streamline the process without the necessity of consulting with two other panel members who may agree or disagree with his/her opinion regarding discovery, motions, and scheduling. This saves significant time and money. With a tri-panel, while almost always collegial, different views concerning all of the foregoing issues may be presented which then, in turn, may cause delay. From my experience, accommodating the schedules of three arbitrators can be daunting and can delay the process. One option is for the parties to select a single member of the panel to deal with some or all of the foregoing issues and evidentiary rulings at trial, thereby creating a hybrid process.

    There is also the issue of who will decide the case. From the single arbitrator’s perspective, as Mel Brooks would say, “It’s good to be king.” From the litigant’s perspective, it may or not be good to be a subject of the sovereign. The parties in this scenario are placing all of their proverbial eggs in one basket. It may also be difficult for a single arbitrator to make what may be perceived as a draconian decision by one side so there may be a tendency on the part of some arbitrators to do substantial justice by taking a middle of the road approach.

    The perceived advantage of a tri-panel is that there is a greater likelihood of a more balanced approach to the decision-making process. With three well-vetted panel members, the opportunity to give and take during the deliberation process is an excellent way to ensure a fair result. To maximize the foregoing, the parties may opt to mutually agree to all three panel members or may each select one with a mutual consensus as to the third. While the perceived advantage in this process may be good in theory, sometimes this may not be the reality. Often tri-panels become juries where there is a disagreement among the members as to the disposition of the matter and therefore compromises are made. Much like the single arbitrator, the panel may render a decision that metes out substantial justice. Another aspect to consider is that a tri-panel may more easily deal with difficult situations since the decision is written as a group rather than as an individual. For instance, they may tend to render verdicts fully in favor of one party over the other. This may make the tri-panel a good choice for an all or nothing case.

    In summary, deciding upon a single arbitrator vs. a tri-panel of arbitrators is an important consideration when resolving commercial cases. When making this decision, it is essential to look at the complexities of the case, timing, cost and profiles of the arbitrators to be selected. Although there is no right or wrong answer, this choice will most certainly affect the outcome of your case.

  • The Mediation Brief – 10 Ways to Use it to Your Advantage

    1. Always submit a brief.
    2. Use the brief to educate the mediator and your adversary as to your position in advance of

      the mediation.

    3. Use the brief to maximize your use of time and to avoid lengthy arguments during the joint

      session.

    4. Always exchange the brief with your adversary.
    5. Exclude from the brief any materials which you believe should be withheld for tactical

      advantage.

    6. Submit an accurate, brief and clear summary of your position.
    7. Address the procedural status of the case, the basic facts, and your arguments in support of

      your position inclusive of an analysis of applicable law.

    8. Avoid redundancy in your argument – less is more.
    9. Attach those exhibits which are critical to your case.
    10. Submit your brief well in advance.

    The most precious commodity at any mediation is time. The goal of an attorney in advance of the mediation is to engage in adequate preparation so that the time allotted is used most effectively. In order to ensure this, the preparation process becomes critical. One of the best opportunities to help maximize the use of time and the possibility of settlement is the preparation and submission of an effective brief. The purpose of the brief is twofold. The first is to educate all of the parties in advance of the mediation as to your position. This will save precious time during the joint sessionwhich otherwise will become mired in a lengthy oral argument with respect to each party’s position. This does not mean that during the joint session that the parties will not engage in a substantial discussion about the merits of the case. The give-and-take during the opening session is an excellent opportunity for the parties to state their positions. However, a brief submitted will make this part of the process far more meaningful as all attending will have a good understanding of your position in advance.

    The foregoing leads to the discussion as to whether the brief should be exchanged with the opposing side. I have found that inevitably all of the information contained in “confidential”submissions is ultimately discussed during the opening session. If there is something that, for tactical reasons, the party wishes to hold back, that should be excluded from the brief, and discussed privately with the mediator or, it can be added onto the brief in a separate confidential document that is sent only to the mediator and not the other side. Ultimately, based upon my experiences, it is to your advantage to exchange the brief.

    The content of the brief is critically important. It should contain a clear summary of the procedural status, the facts of the case, and an argument with respect to the party’s position, inclusive of an analysis of the applicable law. To submit exhibits without a summary does not take advantage of this opportunity to proactively advance the process. A submission which consists solely of exhibits or with little explanation in the summary as to their import gives no insight as to your position.

    The summary should be prepared in a fashion which is accurate, brief, and clear. Briefs frequently resemble motion papers I reviewed as a judge. Many are completely redundant and premised upon the assumption that the more an argument is repeated, the more likely it will be accepted. This should be avoided. The brief should be designed to educate both the opposition and the mediator as to the basic principles of your position. Parties should give careful consideration as to what exhibits should be annexed to the brief. Kitchen sink attachments are not useful and should be avoided. Instead, attach those exhibits that are clearly necessary to advance your position and that enable the mediator and your adversary to have a full understanding of same.

    Finally, the further in advance the brief is submitted the better for all concerned, as this allows sufficient time for review and consideration.

  • When Drafting An Arbitration Clause, Specificity Matters

    The purpose of placing an arbitration clause in a contract is to streamline the resolution of any disputes under the agreement. Alternative dispute resolution (ADR) avoids the time, cost and uncertainty of litigating in court when a dispute arises. In drafting an arbitration clause, the goal is make the clause itself clear and to the point. The last thing you want is to have disagreements over the interpretation of the arbitration provision itself. That would defeat the purpose of same with the result of litigating the meaning of the clause itself. This is a brief synopsis of some of the items that should be considered when drafting the arbitration clause. A general observation is that specificity is a must.

    In the first instance the parties should decide the types of disputes that should be subject to arbitration. Do you want a provision that encompasses any and all disputes, or are there certain areas of disagreement that you want to retain the right to litigate in a court of law? There are no simple answers to these questions. In some circumstances, you may want to reserve your rights to litigate certain disputes in a court of law with the right to appeal any adverse decisions. For simple disputes under the agreement, consideration may be given to a streamlined ADR process where the amounts of potential damages are limited.

    The parties should also consider whether, as a precondition to the exercise of the right to arbitrate, an attempt be made to mediate and resolve the dispute without the necessity of arbitration. This is a good idea as there is very little to lose and much to gain if the matter can be resolved without further effort. If the mediation clarifies the positions of the parties, that, in of itself, is valuable. Further, having the mediation clause in the agreement avoids the problem of a party believing that they will look weak if he/she suggests that the dispute be mediated at the outset.

    A threshold question is what constitutes an attempt to resolve the dispute? Many agreements I have reviewed contain a general description of such. However, consideration should be given to outlining a formal mediation process with a neutral from a designated panel with a mutually agreed upon process that may very well be set forth in an ADR provider’s rules. The arbitration clause should contain very specific notice provisions with respect to the exercise of this right including time limits within which the mediation must be held; an agreement to use a roster of mediators from an ADR provider from which the parties may choose a neutral; a provision that would deal with the possibility that the parties may not be able to agree on a neutral; and a default provision which allows a party to proceed directly to arbitration if the other fails to cooperate.

    With respect to the rules governing procedure and the law to be applied, care must be given in drafting the agreement selecting same. In a case involving interstate commerce, it would be wise to provide a stipulation to the effect that the Federal Arbitration Act (FAA) is to apply. A choice of law should be included and a consent to jurisdiction provision which will apply to the extent that it is not inconsistent with the FAA. Obviously, the choice of law is an extremely important decision and should be given careful consideration when drafting the arbitration clause. Specificity with respect to the location where the arbitration will be held should also be addressed. This is not something that should be left up to negotiation once the right to arbitrate is exercised. Again, disagreement over something as simple as location can lead to a delay in the process. While it is often impossible to foresee the best location for arbitration, consideration should be given to what would be most convenient for the parties and, more significantly, to any witnesses that may have to testify.

    One of the critical issues is a decision by the parties as to whether the arbitration provision provides for a determination by a single arbitrator or tri-panel of arbitrators. If a tri-panel arbitration is provided for, a further decision is required as to whether all the panelists are mutually agreed upon by the parties to the arbitration, or whether it will be a tri-panel “party” arbitration where each party selects an arbitrator, and thereafter the party arbitrators select the umpire.

    A sub-issue in the party arbitration is whether the parties will have input, via their party arbitrator, with respect to the selection of the umpire; or whether once selected, the party arbitrators will independently select the umpire.

    Clearly the most efficient, least costly and most expeditious alternative is to provide for a single arbitrator. However, many parties are unwilling to put all of their eggs in one basket. While more expensive and logistically more difficult, many prefer a tri-panel. Some parties prefer a party arbitration as they are able to select one neutral that may be pre-disposed to their position and have the two party arbitrators select the umpire. As a general comment, the party arbitration can often result in more complications than the simple tri-panel. The selection process of the neutrals can become more unwieldy as the party arbitrators may have difficulty in agreeing on the umpire. Further, prior to making a decision as to whether to provide for a party arbitration, counsel should carefully review the Code of Ethics for Arbitrators in Commercial Arbitrations promulgated by the American Bar Association. There are separate specific provisions regulating the conduct of the party arbitrator which should be considered.

    Another consideration is to set forth the discovery process with specific timelines and limitations. While the parties are always free to agree to a modification of this provision, it is important to have some basic framework in place.

    The arbitration clause should specify the scope of the panel’s decision-making process. The right to award attorneys’ fees, pre and post judgment interest, interim relief, and the ability to award summary judgment are some of the items that should be considered. In addition, a provision regarding the sharing of costs of the arbitration should be included along with the right of a party to seek an award of same from the panel if a party refuses to pay same.

    Careful thought should be given to the nature and scope of the default provision as applicable to the arbitration clause. One could engage in a lengthy discussion of what might be entailed, but clearly the provision(s) should be carefully tailored to the specific type of default with time, notice and remedies that may be pursued.

    Finally who is going to administer the arbitration process? In the absence of a provision, the parties will have to self-administer the arbitration which again opens up numerous areas of potential disagreement. The better practice would be to select an independent ADR provider, such as NAM (National Arbitration and Mediation), to administer everything. The provider will aid in coordinating the entire procedure which would include the selection of the arbitrators, the scheduling and the billing. The parties of course, will need to agree to abide by the rules of the specific ADR provider to the extent that they are not inconsistent with the FAA and choice of law provisions discussed supra.

    This is a thumbnail sketch and in no way a complete list of all the items to be considered in drafting an arbitration clause. However the singular goal is to be as specific as possible to avoid litigating the very provision itself and delaying the ADR process.