THE CRUCIAL DECISION: MEDIATE OR LITIGATE? A FORMER JUDGE'S PERSPECTIVE

By: Honorable Larry S. Schachner (Ret.),

New York Law Journal Alternative Dispute Resolution (ADR) Special Report
November, 2017

In most instances, deciding to mediate or litigate is a key moment in the life of a case. There is always great risk if the parties utilize the litigation process and proceed to trial. One side can have a great victory while the other side can suffer a terrible loss, or there could be a result somewhere in between. Your client could be ecstatic or extremely dismayed. There is always the possibility of an appeal, which extends the life of the case, increases costs, creates further uncertainty, and raises the possibility of a retrial. A successful mediation gives the parties certainty, controls costs, allows the parties to maintain control over the process and the decisions that will be made. As a Judge in the Trial Assignment Part (TAP), I have presided over numerous trials, and now as a private mediator, I have a unique perspective from both sides on these issues.

Litigation in court is fraught with uncertainty. Attorneys are restricted by court rules and artificial deadlines that can vary from county to county resulting in an enormous amount of wasted time. Judges are oftentimes overwhelmed by large calendars which prevent them from being able to have sufficient time and resources to devote to resolving issues and settling litigation. While sitting in TAP, I had calendars of 75 cases or more. It was simply not possible to give each case the time it deserved. The standard 5-minute conference was not enough time to devote to the issues in most cases.

In my time as a mediator, I am seeing firsthand its many benefits and I believe in most instances mediation is the preferred way to proceed. Even if, in the first instance, the mediation is unsuccessful, oftentimes after following up with the parties, a settlement can eventually be reached. The mediation process is far more efficient than litigation and trial. As a practicing attorney, you have experienced the wasted time and resources involved in getting your case to the point of being ready for trial. Waiting for a dispositive motion to be decided can take six months or even more than a year. The wait, once your Note of Issue is filed, can be three to four years in some counties. Certainly, resolving your case at a mediation either during discovery or shortly after the case is put on the trial calendar, is preferable to fighting over discovery, waiting for motions to be decided, and or waiting while your case meanders along on the trial docket. Mediation gives you the flexibility to settle your case at any point in the life of your case – pre-suit, during discovery, post note of issue, right before trial or even while the appeal is pending. The important thing about mediation is that you have control over the case during the mediation process rather than your case getting ensnared in the bureaucracy of court rules, cluttered calendars, long waits, or deadlines imposed by the court for no practical reason.

As a mediator, I can see the case from a new perspective and offer the parties fresh suggestions to move the sides towards a settlement. Parties that have been in a “litigation posture” sometimes need to recalibrate and take a more realistic view of their own case and the position of their adversary. Holding a mediation can encourage both sides to do this.

Of course, a major advantage mediation holds over litigation is being able to devote a major block of time to one case instead of a brief “Readers Digest” court conference. During the mediation the exchanges between the parties give each side an opportunity to educate their adversary. The mediator can point out the strengths and weaknesses of each side. If appropriate the mediator can speak with the plaintiff or the insurance carrier's representative directly. Having more time to devote to a case allows the mediator to break existing stalemates and offer new parameters to jump-start the negotiations. Even preparation for a mediation can aid in obtaining a settlement, as the preparation of a pre-mediation statement forces counsel to re-examine the strengths and weaknesses of their case.

If the mediation is not initially successful, it does not mean that the process was a waste of time. You may have narrowed the gap of differences between the parties or perhaps you learned something new about your adversary's case. At times you may learn that your opposing counsel has a view about a specific issue which you may not have fully appreciated. If you are a plaintiff's attorney, have your client attend the mediation. If unsuccessful, it will allow your client to see what you're up against, and demonstrate to him or her that you are working to get the best settlement possible. The mediation has a similar benefit for defense counsel. Even if the case wasn't resolved, it can get the carrier to re-evaluate the reserve on a case based upon updated information obtained at the mediation. As a mediator whenever the initial mediation fails to reach a settlement, I make sure to follow up with counsel to either kick-start or renew negotiations.

Certainly, there may be situations when you will have to try your case. For example, if your adversary takes an unreasonable position, negotiations may be pointless. If there is a last-minute change in the offer or demand, a trial may be inevitable. There may be occasions where it would be wise to delay a mediation, such as when you are waiting for a key deposition or an expert review. Sometimes a carrier hasn't properly reserved the case, or the excess carrier was not put on notice or refuses to participate. If a major player refuses to attend the mediation or if a party refuses to pay its share of the mediation fee, a delay in the mediation may be necessary. While there are occasions when mediation is not appropriate, I find the majority of cases will benefit from having a neutral intervene.

In sum, the greatest benefit of mediation is that there is a good chance your case will settle. If the case doesn't initially reach a resolution, there is always value in what was learned through the process. Negotiations may have closed the gap between parties, you or your adversary may have a more realistic view of the case or optimally, the mediator will stay involved and continue the negotiations which will hopefully result in a positive outcome for all.

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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.

Click here to view Hon. Larry Schachner's resume

For any questions or comments, please contact Jacqueline I. Silvey/NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.

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Reprinted with permission from the November 27, 2017 issue of The New York Law Journal © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.