COURTHOUSE TO CONFERENCE ROOM: TRANSITIONING FROM THE BENCH TO PRIVATE MEDIATOR
Posted on Aug 07, 2017 |Publications
By: Hon. Larry S. Schachner (Ret.),
New York Law Journal Alternative Dispute Resolution (ADR) Special Report
I have been engaged in the practice of private mediation for only a few months, but already feel like it is the most logical and exciting continuance of my 30 year judicial career. I was a proud employee of the court system, first as a Law Secretary to Supreme Court Justice Howard R. Silver and then as a Judge myself. I have served in four different courts: Housing, Civil, Criminal and Supreme. By far, my most enjoyable time on the bench was mediating cases with an eye towards settlement. I believe my time as both a Law Secretary and as a Judge was the perfect training ground for my career as a private mediator. I look at my new journey in ADR/private mediation as a natural next step in my judicial career and I'm happy to have the opportunity to work at NAM (National Arbitration and Mediation).
As a Law Secretary for Justice Silver during the 1990's, my fondest memories are the many cases I settled in the “STP Part”, earning the nickname “Judge Larry” from the attorneys who appeared before me. In those days, private mediation was a rarity. Today, it's the norm. While on the bench, I handled a wide variety of cases, from those involving pro-se litigants to more complex litigation such as labor law, toxic torts, medical malpractice, premises liability, civil rights, municipal liability and motor vehicle negligence. While I tried my share of cases, I believe my biggest strength as a judge has always been my ability to bring parties together to resolve issues and settle disputes.
Over the years, I have seen firsthand how difficult it has become for lawyers to get their cases tried. There are many reasons why this has occurred but, in my opinion, the number one reason is that there are an insufficient number of judges available to try cases. While this problem has gotten worse, it has also been exacerbated by the Office of Court Administration (OCA) budget cuts. A judge needs a courtroom and a staff to conduct a trial. In recent years, budget constraints have seen court clerks retire and not be replaced. In the Bronx Supreme Court, the Law Department was stripped bare. The loss of experienced clerks and court attorneys in the court system has created a brain drain and shortage of essential resources. Another reason why resolving litigation faces inordinate delays is that certain cases sit in a holding pattern while summary judgment motions are pending. In some of those instances, litigants wait six months or sometimes up to a year or more for a decision to be rendered. Certainly, this is not fair to the parties as it prevents a case from being fully evaluated, settled, or sent out to trial. These issues will not be solved overnight, despite the best of intentions of court administrators.
The problems that I left behind in the court system are now in my rearview mirror as I embark on my new career. I'd like to share a few observations which I've made in my first few months as a neutral. First and foremost, private mediation is much more civilized and efficient than a settlement conference in court. Instead of waiting around in a courtroom with a hundred other attorneys to have your case called for a five-minute conference, mediation allows you to manage your time more efficiently. In private mediation, you have a solid block of time to discuss your case with a mediator who is solely focused on your claim. While on the bench I learned to multitask quite effectively, conferencing a case, signing a discovery order or subpoena, conferring with my court attorney on a legal issue and checking to see if I'd be allowed to send any cases out for jury selection, all at once. Now, as a private mediator, I am laser-focused on the matter before me and can get into greater detail, analyzing all of the relevant issues. While I occasionally miss the organized chaos of the courtroom, I am quickly getting used to the pace, structure and dialogue of private mediation.
I have also noticed that, for the most part, attorneys who appear for mediation are generally better prepared to reach a settlement than counsel who appear in court for a settlement conference. Many times in court you have a per diem attorney or a young associate who may not know all the details of the case and does not have authority to negotiate. Attorneys at mediation generally know the strengths and weaknesses of their cases, have their clients with them or on phone standby, and know the parameters of where the litigation can settle.
In court, cases often need to “ripen” in order to be in position for settlement. That is, all discovery needs to be completed or the judge is told that the carrier hasn't evaluated the case yet. I have noticed that parties will mediate and settle their cases early on, sometimes before parties have completed discovery, even prior to depositions. In mediation, if there is a willingness to resolve a case by both sides, it can get done at any stage of the litigation.
Generally, in court, cases mostly settle when the lawyers hear the famous words, “go pick.” In mediation, the parties are there voluntarily and they are motivated to settle their case. After all, that's why you've paid for the mediation – you want to try to settle. Of course, sometimes people are not realistic about their case, or they use mediation to test the strengths and weaknesses of their position, or perhaps are trying to obtain information from the opposing side. However, even if this is so, a settlement can still result out of these circumstances, if the parties “put all of their cards on the table” and are realistic in their evaluation of the case.
Of course, the court uses its best efforts to attempt to resolve cases. However, sometimes the court system's priorities don't match the concerns of the attorneys. OCA's recent emphasis in “pre-note standards and goals,” I'm sure, is not important to most practitioners and, in my experience, did not assist in obtaining dispositions. In private mediation, the mediator and the attorneys are free from the formalities of OCA and the courthouse. This allows me to be more assertive during the mediation and follow up after an initial mediation session which may not end in a settlement. The mediation is not necessarily over if it was unsuccessful at first. I remain in contact afterwards and continue to prod and push the parties to move them closer to a resolution. This does not happen in court, as the parties will generally just wait for the next conference date without the court getting involved.
The bottom line is that private mediation allows cases to be resolved more quickly, more efficiently, with greater cost-effectiveness and with the parties maintaining greater control of the outcome, than allowing your case to slowly meander through the different stages of the court system's litigation maze. That being said, I am looking forward to continuing this exciting new phase of my career.
Hon. Larry S. Schachner is a retired Justice of the Supreme Court, Bronx County. He is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. Judge Schachner served on the bench for nearly 20 years and was rated “Highly Qualified” by the New York State Independent Judicial Election Qualifications Commission.
For any questions or comments, please contact Jacqueline I. Silvey/NAM General Counsel, via email at firstname.lastname@example.org or direct dial telephone at 516-941-3228.
Reprinted with permission from the August 7, 2017 issue of The New York Law Journal © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.