NAM (National Arbitration and Mediation) extends its heartfelt congratulations to the Hon. Douglas E. McKeon (Ret.) on the recent naming of courtroom 607 at the NYS Supreme Court, Bronx County Courthouse.  The courtroom will now be known as the “Douglas E. McKeon Ceremonial Courtroom.”

This well-deserved recognition took place on September 26, 2024 at a ceremony attended by many in the legal community including NAM neutrals the Hon. Larry Schachner (Ret.) and Jacqueline Stein, Esq., as well as Jacqueline Streffacio, NAM’s Vice President of Facilities and Administration.

The naming of the courtroom is a testament to Judge McKeon’s distinguished judicial career which includes his handling of many high-profile cases and his appointment as Statewide Coordinating Judge for the NYS Medical Malpractice Program.

NAM is extremely proud to have such a notable and well respected neutral on its panel.

The post NAM Neutral The Hon. Douglas E. McKeon (Ret.) Honored with Courtroom Naming at Bronx Supreme Court appeared first on National Arbitration and Mediation.

NAM Hearing Officer Rhonda Epstein, Esq. will present “Mediation to Resolve Disputes” with Bruce Cholst at 11:00 a.m. E.T. as part of the Council of New York Cooperatives & Condominiums’ 44th Annual Housing Conference. They will discuss how mediation presents an excellent forum for disputing neighbors or for shareholders/unit owners disputing with Boards to try to resolve their differences. The conference will take place via Zoom on Sunday, November 17th, 2024, from 9:00 a.m. to 5:00 p.m. E.T. Registration closes on 11/14, don’t miss your chance to attend this insightful session.

To register on the CNYC website, click here.

To view the brochure for the conference, click here.

About NAM’s presenter

Rhonda L. Epstein, Esq. is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate labor and employment cases throughout the New York Metro area. She is a seasoned litigator with more than 35 years of wide-ranging experience in civil litigation and concentrates her legal practice in employment law and housing discrimination. As both a litigator and mediator, Ms. Epstein has successfully counseled, supervised, and mediated employment law cases related to claims of age, national origin, sexual orientation, gender identity, disability, religion, and pregnancy discrimination. Ms. Epstein is well-respected professionally by both sides of the bar and is known for her fair and objective approach to the resolution of cases. In 2024, for the third year in a row, she was voted a Top Ten Arbitrator in the New York Law Journal “Best Of” survey. Ms. Epstein also has been awarded an AV Preeminent Peer Rating by Martindale-Hubbell.

The post Rhonda Epstein, Esq. Invited to Speak at the Council of New York Cooperatives & Condominiums’ 44th Annual Housing Conference appeared first on National Arbitration and Mediation.

NEW YORK, NY – September 24, 2024 – For the fourteenth consecutive year, NAM (National Arbitration and Mediation) has been ranked as the #1 Alternative Dispute Resolution (ADR) Provider in the 2024 New York Law Journal “Best Of” survey.

NAM’s exceptional mediators and arbitrators once again dominated the individual categories. In total, 8 NAM arbitrators and 8 NAM mediators ranked in the top 10 in their respective categories.

NAM arbitrators who ranked in the Top 10:

• Hon. Leonard B. Austin (Ret.)
• Hon. Elizabeth Bonina (Ret.)
• James W. Borkowski, Esq.
• Rhonda L. Epstein, Esq.
• Richard J. Fodera, Esq.
• George Freitag, Esq.
• Hon. Alan D. Scheinkman (Ret.)
• Hon. Ira B. Warshawsky (Ret.)

NAM mediators who ranked in the Top 10:

• Hon. Elizabeth Bonina (Ret.)
• John. P. DiBlasi (Ret.)
• Joseph L. Ehrlich, Esq.
• Susan Hernandez, Esq.
• Jennifer Herscovici, Esq.
• Hon. Larry S. Schachner (Ret.)
• Hon. Peter B. Skelos (Ret.)
• Michael B. Titowsky, Esq.

“We are honored to have been voted the top ADR provider in New York for the 14th consecutive year,” said Jason Brennan, NAM’s CEO. “I want to congratulate all of our distinguished neutrals who ranked in the top 10 of the arbitrator and mediator categories. We are profoundly grateful to all those who took the time to vote in this year’s survey, reinforcing NAM’s standing as a leader in the ADR industry.”

In addition to being named the #1 Overall ADR provider, NAM was also voted the #1 Online ADR Resource, and #1 CLE Provider by this year’s New York Law Journal “Best Of” Survey respondents.  

To access the full edition of the 2024 New York Law Journal “Best Of” Survey, click here.

To view NAM’s New York Metro Roster, click here.

About the New York Law Journal “Best Of” survey

New York Law Journal’s ‘Best Of’ survey is conducted annually. The ballot is provided for review roughly 4-6 weeks before voting opens. Voting is open for four weeks and is open to attorneys, in-house attorneys, judges and law firm/legal department administrators. The survey is sent out through the following channels: email to our distribution list, email to subscribers in our database, social media posts, digital advertising on our websites and digital advertising in our email alerts.  We vet ballots for verified emails, duplicates, suspicious ballots, etc. to ensure the legitimacy of the results. We provide the top rankings for each category in an annual supplement. 

About NAM

NAM is a full-service provider of Alternative Dispute Resolution (ADR) services – supporting clients throughout the U.S. and in major cities around the world through a highly secure suite of onsite, virtual and hybrid forums. With its superb customer service, market-leading technology, and an exceptional panel of arbitrators and mediators, NAM works with over 10,000 commercial entities, including over half of the Fortune 100 companies. Throughout its 30+ year history, the company has consistently been ranked one of the top ADR and Continuing Legal Education providers in the country, including in the most recent “Best Of” survey by the National Law Journal.

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Media Contact:

Sharon Pedersen
Sr. Director of Marketing and Neutral Recruiting
spedersen@namadr.com
(516) 941-3245

The post NAM Ranked the #1 ADR Provider by the New York Law Journal for the 14th Consecutive Year appeared first on National Arbitration and Mediation.

NAM (National Arbitration and Mediation) invites you to join us for an educational seminar and networking at The Refuge!

Alternative Dispute Resolution (“ADR”) is a quick and efficient option for the settlement of disputes. Many medical malpractice cases start as court proceedings and are later resolved through ADR, avoiding the need for trial. As is the growing trend, many disputes are never filed as lawsuits with courts at all and are resolved through ADR.

NAM neutrals, the Hon. Paul J. Baisley, Jr. (Ret.) and the Hon. Peter J. O’Donoghue (Ret.) will present an in-depth look at some of the integral issues to be addressed for the successful resolution of medical malpractice cases.

NAM is an accredited provider of CLE in New York, approved for traditional live-classroom format, as well as webinars, fully interactive video conferences, and pre-recorded videos. This course is approved for experienced and newly admitted attorneys. Attorneys will receive 1.0 credit in the area of Professional Practice.

To register with NAM for this 60-minute CLE, How to Settle a Medical Malpractice Case, and networking please click below.

Space is limited! Sign up today for this complimentary CLE presentation and networking brought to you by NAM. 

Meet NAM’s Presenters

The Hon. Paul J. Baisley, Jr. (Ret.) is a retired Justice of Supreme Court, Suffolk County, and is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel. For 25 years, Judge Baisley presided over and settled more than a thousand cases, giving him a broad range of experience and knowledge across numerous case types including commercial, employment, insurance, labor law, fraud, matrimonial, medical malpractice, negligence, personal injury, premises liability, and real property/real estate (commercial and residential). Judge Baisley is known and respected for his legal acumen and his ability to resolve conflict in an unbiased manner. He is available to arbitrate and mediate cases throughout New York State.

The Hon. Peter J. O’Donoghue’s (Ret.) remarkable judicial career includes 27 years spent as a Justice of the Supreme Court in Queens County. From 2008 until his retirement, all medical and dental malpractice filings in the Queens County courthouse were exclusively assigned to him. Judge O’Donoghue conferenced, negotiated, mediated, and settled more than 300 medical malpractice matters each year while on the bench, and has successfully mediated more than 150 nursing home cases. Prior to his time on the bench, he served as Principal Law Clerk to the Honorable John J. Clabby of the Queens County Supreme Court, Criminal Term for thirteen years. He also served as a Small Claims Court arbitrator, arbitrating more than 200 cases over a 3-year period. Judge O’Donoghue is available to arbitrate and mediate cases throughout the New York City Metro area.

About NAM’s Continuing Legal Education Program

NAM provides complimentary continuing legal education (CLE) programs virtually, on-site at your office, or in any of NAM’s dedicated conference facilities. Our Continuing Legal Education department will work with your firm or organization to customize a CLE program that is designed to meet your specific CLE issues and topics of interest. Our respected faculty provides participants with an interactive presentation that will engage and educate your audience as they earn relevant CLE credit.

Please contact NAM’s CLE department at 800-358-2550, ext. 145 or email Sharon Pedersen at cle@namadr.com for information on how we can customize a CLE program for your organization.

The post CLE and Networking: How to Settle a Medical Malpractice Case appeared first on National Arbitration and Mediation.

It is a truism that most civil cases are settled. A number of studies have put the aggregate
settlement rate at 95%, although that seems unduly high, as such other forms of non-trial
disposition (dismissals, voluntary discontinuances) may not be accounted for. According to the
2023 Annual Report of the Chief Administrator, 33,632 out of 165,101 civil cases in New York
State Supreme Court, or 20%, were disposed by settlement. Only 1,322 verdicts were reported,
representing less than 1% of the total dispositions.

Aggregate settlement rates tell only a portion of the story. Tort cases generally have high
settlement rates, perhaps because the parameters of compensation for discrete injuries are well
known. Contract cases also settle at a high rate, which may be attributable to the parties’ ability
to evaluate both the responsibility for breach and the recoverable damages. Employment
discrimination and constitutional tort cases may be more difficult to settle.

A 2008 study by DecisonSet, reported on by the New York Times, analyzed whether
plaintiffs and defendants made the correct decision in passing up a settlement and going to trial.
The study found that defendants made the wrong decision in 24% of the cases and plaintiffs made
the wrong decision in 61% of the cases. In only 15% of the cases was going to trial the right call
for both parties, meaning that the defendant ended up paying more than it had offered, but less
than what the plaintiff had demanded.

When a party is disappointed with the trial outcome or with the result of motion practice,
the stage is set for an appeal. At one time, it was widely perceived that the rendition of a verdict
or the rendering of a decision would close the door to meaningful settlement discussions. After
all, the prevailing side had prevailed. In more recent years, led by the appellate courts, the use of
mediation during appeal has been increasing and increasingly successful.

The taking of an appeal is readily accomplished and not terribly expensive. A notice is
prepared and served, and a filing fee paid. However, perfecting an appeal through the preparation
and filing of briefs and an appellate record can be expensive. While the expense of submitting a
record (including obtaining a transcript) is typically on the appellant in the first instance, where a
cross-appeal is taken, the expense comes joint and may be shifted to the respondent if costs are
awarded in the appellate decision. Costs are generally awarded to the prevailing party in civil
appeals. Avoidance of substantial costs, and the legal fees associated with brief writing and oral
argument, can be an incentive to mediate before an appeal is perfected.

Just as in the trial court, risk mitigation provides a powerful incentive to mediate during the
appellate process. In 2023, in both the First and Second Departments, the Appellate Division
reversed or modified in roughly 30% of the appeals decided after argument or submission resulted
in reversal or modification. In the Court of Appeals, about 50% of the civil appeals decided in 2023
ended in reversal or modification. So, although the odds generally favor respondents and
appellants have the burden of persuading the court that an error was made, respondents should
recognize that there is always the prospect that the appellate panel will intercede. This is
particularly true in the Appellate Division, with its unique authority to review the facts. Of course,
both sides need to evaluate the persuasiveness of the trial court’s rulings since, ultimately, the
fate of the appeal will be significantly impacted by soundness of the nisi prius determination. In
the personal injury realm, counsel will need to compare the damages awarded against awards
recently affirmed or reduced on appeal for similar injuries.

Settlement may also be influenced by the appellant’s ability and willingness to post a bond
to secure a money judgment and by the respondent’s assessment of the collectability of an award.
Where a sizeable judgment is entered, the appellant may have difficulty obtaining an undertaking
in order to secure a stay of enforcement pending appeal. As we have recently seen in the Trump
civil fraud case, bonding companies will almost always require the posting of full cash collateral,
covering principal and interest, as a condition of issuing a bond. Even if the appellant can put up
the cash, the appellant may lose the ability to use or invest those funds pending appeal. And, of
course, even if enforcement is stayed, interest on a judgment continues to run. On the other hand,
if the damages exceed any available insurance, the plaintiff needs to consider how readily the
award can be collected, the cost and expense of collection proceedings, and the potential for the
defendant to file bankruptcy. There are cases in which the recovering party may agree to avoid
the expense and delay of appeal, and the risk and uncertainty of collection, and accept an ironclad commitment for a prompt payment of a reduced sum.

Our appellate courts have led the way with successful court-annexed mediation programs.
The Second Circuit pioneered appellate mediation with its 1974 creation of its CAMP program
under which all counseled civil appeals, whether single issue or complex, are eligible for
mediation. According to the court, the program has facilitated the resolution of hundreds of
appeals and, even if a given appeal is not resolved, the process may help the parties to narrow
and better frame the issues to be presented on the appeal. The court uses full-time circuit
mediators and also has a pro bono mediator panel.

The First, Second, and Third Departments also have pre-argument mediation programs.
The First Department suggests that appellants refrain from perfecting their appeals until after a
scheduled pre-argument conference is held. The Clerk’s office selects the cases for conference
based on the information submitted when the appeal is taken, though generally Article 78 matters
and child custody disputes are not selected. Conferences are generally conducted by Special
Masters who are appointed by the court and who provide their services pro bono. In 2023, the
First Department reported that 2,295 civil appeals were disposed of prior to argument or
submission, including matters that were dismissed, withdrawn, or settled.

The Third Department created a Civil Appeals Settlement Program in 1998. Selected civil
appeals are conferenced by a settlement officer appointed by the court. The court has recognized
this program as a major factor in its efforts to deal with its increasing workload. In 2023, the Third
Department reported that 1,181 appeals were disposed of prior to argument or submission.

The Second Department has two programs. One, its CAMP program, created in 1974,
focuses primarily on unperfected appeals. Conferences are generally held within three months of
the taking of the appeal and the court suggests counsel consider deferring perfection of their
appeals pending the conference. Appeals are selected by the program administrator based on an
assessment as to whether the appeals lend themselves to disposition through negotiation. The
administrator considers the likelihood of resolving, or at least limiting, the issue or issues to be
raised on appeal, and the possibility of negotiating a final resolution of the underlying litigation.
Counsel on an appeal which has not been selected may request a conference. CAMP
conferences are conducted by retired Justices of the Court (as JHOs) and by the program
administrator. Roughly 25% of the noticed civil appeals are conferenced each year; on average,
approximately 30% are settled in conference each year. All in all, the CAMP program succeeds
in resolving approximately 10% of the noticed appeals each year.

During my tenure as Presiding Justice, the Second Department established a second
mediation program, known as MCAMP, that focuses on appeals that have already been perfected
and are awaiting a calendar date. Although the expense of the appeal has largely been incurred,
MCAMP has proven to be helpful in aiding counsel to resolve cases and in helping the court with
its heavy docket. Since 2022, over 300 mediations have been held, with 59 appeals being fully
settled and another 62 cases being withdrawn, for a resolution rate of 38%. Mediations are
conducted by special masters appointed by the court. Special masters provide 90 minutes of
conferencing pro bono but may request compensation for additional time.

While none of these court-annexed programs require the parties to settle, the courts may
require that counsel attend and participate. (See Matter of Schwartz, 177 AD2d 977 [2d Dep’t]).
The court websites provide easy access to the governing rules and provide further guidance.

Counsel are also free to agree to a private mediator. Any number of retired appellate
judges are available to provide private mediation services. On a number of occasions, former
appellate judges, myself included, have participated in moot court exercises designed both to
enable counsel to prepare for argument and provide an evaluation of the appeal that may aid in
considering a settlement pending appeal.

In short, the taking of an appeal may be a step that will advance, and not preclude efforts
to resolve the matter.

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Reprinted with permission from the August 19, 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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Hon. Alan D. Scheinkman (Ret.) is a Hearing Officer for NAM (National Arbitration and Mediation). He is the former Presiding Justice of the Second Judicial Department of the New York State Supreme Court, Appellate Division, where he heard appeals in a wide variety of complex litigation matters that included business disputes, labor and employment partnerships, landlord and tenant, commercial foreclosure cases, business receiverships, business torts, matrimonial and family law, trusts and estates, defamation, land use and construction, health law and wage and hour cases. Judge Scheinkman was voted the #1 Arbitrator in the 2021 New York Law Journal “Best of” survey.

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

The post The Appeal of Mediation: An Increasingly Successful Practice appeared first on National Arbitration and Mediation.

NAM neutral, Bob Worden, Esq. will discuss his 30 Rules of Mediation, which can be applied to all forms of conflict resolution, whether the issues involve plaintiffs and defendants, businesses, nations, or family disputes.

Bob will demonstrate why embracing ethical behavior enhances the chances of obtaining consistently good outcomes. This program includes a thorough exploration of negotiation and settlement principles proving that displaying integrity, a willingness to listen, and genuine humility will produce the best results in settling disputes.

Attendees will learn to apply these rules to make the right choices and achieve better results while avoiding unnecessary expense and pain associated with continued conflict, which usually damages all sides, highlighting the need to fully explore settlement opportunities whenever possible.

To register with NYS Academy of Trial Lawyers for this 60-minute CLE webinar, 30 Rules of Mediation and the Importance of Ethical Conduct, please click below.

Meet NAM’s Presenter

Bob Worden, Esq. is a member of NAM’s (National Arbitration and Mediation) Hearing Officer panel and concentrates on high-exposure personal injury and medical malpractice cases. In 2020, for the third year in a row, Mr. Worden was voted a Top Ten Arbitrator by the New York Law Journal “Best Of” survey. He is available to mediate major personal injury claims and medical malpractice cases throughout New York State. He is also a member of Lawrence, Worden, Rainis & Bard, P.C.

About NAM’s Continuing Legal Education Program

NAM provides complimentary continuing legal education (CLE) programs virtually, on-site at your office, or in any of NAM’s dedicated conference facilities. Our Continuing Legal Education department will work with your firm or organization to customize a CLE program that is designed to meet your specific CLE issues and topics of interest. Our respected faculty provides participants with an interactive presentation that will engage and educate your audience as they earn relevant CLE credit.

Please contact NAM’s CLE department at 800-358-2550, ext. 145 or email Sharon Pedersen at cle@namadr.com for information on how we can customize a CLE program for your organization.

The post CLE Webinar: 30 Rules of Mediation and the Importance of Ethical Conduct appeared first on National Arbitration and Mediation.

The various stages of the arbitration process require careful planning and consideration. This program will focus on a practical approach in representing your client throughout the process, including the arbitration agreement and the best time to negotiate the arbitration clause to ensure the successful settlement of a case.

The Hon. John P. DiBlasi (Ret.) will also provide attendees with insight and guidance on all phases of the arbitration process, including:

• Pre-arbitration mediation
• Confidentiality agreements
• The discovery process
• Preparation of clients and witnesses
• Final submissions

To register with PLI (Practising Law Institute) for this 60-minute CLE webinar, Navigating the Arbitration Process from Inception to Conclusion, please click below.

Meet NAM’s Presenter

Hon. John P. DiBlasi (Ret.) is the former presiding Justice of the Commercial Division of the Supreme Court of the State of New York. He has arbitrated and mediated more than 3,000 cases with an ADR practice that focuses on resolving commercial, international, finance, employment, entertainment, land use, and professional malpractice matters. In 2024, Judge DiBlasi was ranked a Top Three Mediator in the United States by the National Law Journal “Best Of” survey for the eleventh straight year. He was also voted the #1 Mediator in the country by the Corporate Counsel Best Of Survey and he was named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide. Furthermore, in 2022, he was voted a Top Ten Mediator in the New York Law Journal “Best Of” survey, for the thirteenth consecutive year. Judge DiBlasi holds an AV Preeminent Peer Rating from Martindale-Hubbell in both Alternative Dispute Resolution and Litigation – a distinction given only to those who possess the highest ethical standards and professional ability. Judge DiBlasi is available to arbitrate and mediate cases throughout the United States.

About NAM’s Continuing Legal Education Program

NAM provides complimentary continuing legal education (CLE) programs virtually, on-site at your office, or in any of NAM’s dedicated conference facilities. Our Continuing Legal Education department will work with your firm or organization to customize a CLE program that is designed to meet your specific CLE issues and topics of interest. Our respected faculty provides participants with an interactive presentation that will engage and educate your audience as they earn relevant CLE credit.

Please contact NAM’s CLE department at 800-358-2550, ext. 145 or email Sharon Pedersen at cle@namadr.com for information on how we can customize a CLE program for your organization.

The post CLE Webinar: Navigating the Arbitration Process from Inception to Conclusion appeared first on National Arbitration and Mediation.

NAM neutral, the Hon. Peter B. Skelos (Ret.) and Forchelli Deegan Terrana, LLP partners, Lisa M. Casa, Esq., Danielle B. Gatto, Esq., and Bret L. McCabe, Esq. will discuss the provisions that should be addressed in any arbitration clause. The overall focus will be to avoid the possibility of the arbitration clause being challenged in court or before an arbitrator. Topics will include, among others, choice of law, venue and the location of the arbitration, administered versus self-administered arbitrations, single versus panel arbitrations, selection of the panel, confidentiality, the importance of reciprocal provisions, streamlined discovery, protective orders, default provisions and a discussion of the impact of the agreement on the arbitrator.

Our esteemed panel will provide tips on crafting an arbitration clause with specific terms on professional responsibility, learn the importance of streamlining the resolution of any dispute under the agreement, and how best to create a clause specific to the business transaction that will ultimately save time, reduce costs, and avoid any uncertainty in the arbitration process.

To register with the Nassau Academy of Law for this 90-minute CLE webinar, Negotiating and Litigating Arbitration Clauses, please click below.

Meet NAM’s Presenter

Hon. Peter B. Skelos’ (Ret.) career includes 11 years spent as an Associate Justice of the Appellate Division of the New York State Supreme Court, Second Judicial Department. Judge Skelos’ experience both on the bench and in private practice, gives him a broad range of knowledge in numerous areas of the law including construction litigation, professional liability and insurance coverage disputes. In 2022, for the seventh year in a row, Judge Skelos was voted a Top Ten Neutral in the New York Law Journal “Best Of” survey. He was also named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide. Judge Skelos is available to hear cases throughout the United States. He is also Of Counsel to Forchelli Deegan Terrana LLP.

About NAM’s Continuing Legal Education Program

NAM provides complimentary continuing legal education (CLE) programs virtually, on-site at your office, or in any of NAM’s dedicated conference facilities. Our Continuing Legal Education department will work with your firm or organization to customize a CLE program that is designed to meet your specific CLE issues and topics of interest. Our respected faculty provides participants with an interactive presentation that will engage and educate your audience as they earn relevant CLE credit.

Please contact NAM’s CLE department at 800-358-2550, ext. 145 or email Sharon Pedersen at cle@namadr.com for information on how we can customize a CLE program for your organization.

The post CLE Webinar: Negotiating and Litigating Arbitration Clauses appeared first on National Arbitration and Mediation.

The traditional approach to resolving legal disagreements through courtroom litigation often proves to be lengthy, costly, and stressful for everyone involved. As a result, many practitioners are now utilizing alternative dispute resolution (ADR) techniques to resolve viable legal claims in a cost-efficient manner. One such method is mediation — employing a neutral who can help parties properly assess their respective positions in a legal dispute, and at the same time provide recommendations that can form the basis of a final settlement.

I have been privileged over the past several years to serve as a mediator in legal matters all across the United States and as a consultant to the United States Agency for International Development (USAID) on the use of ADR techniques in emerging democracies in Eastern Europe. That experience has made it abundantly clear to me that there are steps a practitioner can and should take prior to meeting with a mediator. These steps will ensure that their client benefits from the mediation and achieve a final settlement that effectively addresses their legitimate interests.

Important steps a client should consider for a positive outcome

• It is essential before meeting with the mediator that the client is “fully invested “in the mediation process. It is crucial that they completely understand how the mediation will be conducted.
• The client should be told that initially, the mediator will meet with all involved and give a brief description of the process to be employed in the mediation.
• The client should know that the mediator may ask the party’s representatives to make opening statements setting forth the particulars of the dispute, its legal history and the party’s position as to how the matter should be resolved.
• Next, the mediator will caucus with each side or hold private meetings, during which the legal issues attendant to the dispute will be discussed and at some point, possible settlement options will be explored. What is said at a caucus is confidential and will not be disclosed by the mediator to the other side unless permission is given by either the client or their legal representative.
• Finally, the client needs to understand before meeting with the mediator, that the mediation will only be successful if all involved are willing to engage in good faith negotiations and make responsible compromises if a binding agreement is to be reached resolving their legal differences. With that in mind, potential settlement positions need to be discussed in detail with the client before the mediation takes place.

The all-important mediation brief

Also, prior to the mediation, counsel should prepare and submit to the mediator a brief with exhibits detailing the particulars of the dispute, its history, including a description of any prior settlement discussions, and arguments supporting the client’s position on the matter at issue. The brief serves to educate the mediator as to the particulars of the dispute before meeting with the parties and sets forth arguments in support of a party’s position that the mediator can use when caucusing with the other side during the mediation. It in effect arms the mediator with arguments that can be used to move the other side closer to your client’s settlement position. Counsel is not required to share that brief with the other side and can expressly provide that it is confidential and for the mediator’s eyes only.

Selecting the mediator

Finally, each side has to agree on the mediator. 

• The mediator’s experience, professional background and reputation in the legal community are all factors that need to be considered;
• An interview with the individual is highly recommended;
• References should be provided. Names of attorneys who have previously participated in a mediation should be consulted. While those references are likely to be favorable, those individuals can also identify others who have represented the other parties who participated in the mediation. Those individuals should be able to provide a fuller picture of the mediator and how they handled the mediation;
• Lastly, an internet search can often provide a gold mine of information about the mediator and their history in using mediation to resolve legal disputes.

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The U.S. Department of Labor recently reported that 85% of cases submitted to mediation result in final settlements. Given the backlog which exists in our courts, a cost-effective and efficient dispute resolution technique should always receive the utmost consideration from practitioners who are looking for a timely and economical method by which they can resolve claims on behalf of their clients.

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After an illustrious legal career in public service as an Associate Justice of the Appellate Division and the Supreme Court, District Attorney and Prosecutor, the Hon. E. Michael Kavanagh, J.S.C. (Ret.) joined NAM’s (National Arbitration and Mediation) esteemed panel of neutrals. Judge Kavanagh has arbitrated and mediated hundreds of cases involving Complex Commercial, Construction, Labor and Employment, Legal Malpractice, Product Liability and Personal Injury matters involving settlements in the amounts of six figures and greater. Judge Kavanagh was given high marks for his demeanor, fairness, and legal knowledge, and is available to arbitrate and mediate cases throughout the state of New York.

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

The post ADR as a Practical Alternative to Litigation appeared first on National Arbitration and Mediation.

The use of Alternative Dispute Resolution, particularly in the area of mediation, has grown dramatically in the past ten years. However, it is a process with which many counsel are unfamiliar. Judge Scheinkman will discuss the importance of ethical considerations that relate to settlement negotiations. Given the nature of mediation, it is important that the parties negotiate in an ethical fashion which translates into good faith. While trust of an adversary is a relative concept, there is an ethical obligation of fair dealing when negotiating a settlement. The absence of same will breed mistrust which will detrimentally affect the mediation process.

Judge Scheinkman will also address the importance of ethical considerations when negotiating with opposing counsel on issues relating to representation of the client, as well as problems that may arise with parties in attendance at the mediation. He will also explore the importance of ethics as it relates to confidentiality, conveyance of demands and offers, disclosure of new information, insurance issues, pre-mediation submissions, and settlement terms.

The presentation will emphasize the ethical obligation to negotiate in good faith and strategies of a proactive approach by counsel to head off bad faith behavior.

NAM is an accredited provider of CLE in New York, approved for traditional live-classroom format, as well as webinars, fully interactive video conferences, and pre-recorded videos. This course is approved for experienced and newly admitted attorneys. Attorneys will receive 1.0 credit in the area of Ethics.

To register for this 60-minute CLE webinar, Legal Ethics and the Mediation Process, please click below.

Meet NAM’s Presenter

Hon. Alan D. Scheinkman (Ret.) is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel. He is the former Presiding Justice of the Second Judicial Department of The New York State Supreme Court, Appellate Division, where he heard appeals of a wide variety complex litigation matters that included business disputes, labor and employment partnerships, landlord and tenant, commercial foreclosure cases, business receiverships, business torts, matrimonial and family law, trusts and estates, defamation, land use and construction, health law and wage and hour cases.  As an appellate judge, trial judge and litigator, he has handled all types of employment matters that include breach of contract, trade secrets, confidentiality agreements, covenants not to complete, wrongful termination, discrimination, sexual harassment, and wage and hour disputes. Judge Scheinkman was voted the #1 Arbitrator in New York State in the 2021 New York Law Journal “Best Of” survey. Judge Scheinkman is available to arbitrate and mediate cases throughout the United States.

About NAM’s Continuing Legal Education Program

NAM provides complimentary continuing legal education (CLE) programs virtually, on-site at your office, or in any of NAM’s dedicated conference facilities. Our Continuing Legal Education department will work with your firm or organization to customize a CLE program that is designed to meet your specific CLE issues and topics of interest. Our respected faculty provides participants with an interactive presentation that will engage and educate your audience as they earn relevant CLE credit.

Please contact NAM’s CLE department at 800-358-2550, ext. 145 or email Sharon Pedersen at cle@namadr.com for information on how we can customize a CLE program for your organization.

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