CCBJ Interview With Rhonda L. Epstein, Esq. | In The Age Of Coronavirus, ADR Is More In-demand Than Ever

NAM (National Arbitration and Mediation)
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NAM (National Arbitration and Mediation)

Corporate Counsel Business Journal (CCBJ) | September-October 2020 Edition

* Rhonda L. Epstein, Esq. is a neutral with NAM (National Arbitration and Mediation) and a longtime proponent of alternative dispute resolution. She's also a seasoned litigator with an extensive background in employment law and commercial matters relating to the representation of corporate and other for profit and not for profit entities. She talked with us about how that experience helps her work as a mediator and arbitrator, especially as COVID-19 wreaks havoc on businesses and the court system alike.

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CCBJ: You have deep experience in employment law. Could tell us about your career as an employment lawyer?

Rhonda Epstein: I was admitted to the bar in 1984, and after a few years of practicing at a small boutique firm in lower Manhattan, I joined a major insurance company, where I started, developed and grew their in-house specialty law department. I began by representing insureds of Chubb Insurance in employment matters in New York, and then expanded throughout the country. In this capacity, I oversaw a group of talented attorneys who litigated in the state and federal courts, as well as in administrative agencies. Our wide variety of clients included commercial businesses, nonprofit organizations, co-ops and condos, housing associations, private schools, country clubs, and their boards of directors. The cases ran the gamut of federal and state employment and human rights laws, as well as various business claims against the entities and their boards.

Currently, in addition to working as a neutral at NAM, I'm giving back by volunteering as a mediator for the U.S. District Court in the Southern District of New York and at the Equal Employment Opportunity Commission (EEOC).

How does your professional experience help when you mediate or arbitrate disputes?

Given my wide breadth of experience, I'm quite familiar with the applicable laws and the various scenarios and claims that form the basis of most legal disputes. When I'm with the parties, I draw on my experiences to help move them through the process. As a practicing attorney, I've been responsible for a myriad of cases, and I understand the issues and concerns of the parties. While I come into each mediation with a blank slate, my experiences and my humanity allow me to connect with the parties in an authentic fashion, gaining their trust and respect.

What led you to become a mediator and arbitrator after so many years as a litigator?

With more than three decades of litigation experience, I knew that the vast majority of cases settle before trial, and that often the cost of a litigation was the driving factor – and even an obstacle to resolving cases. I would listen to my clients, and I saw the toll that litigation took – the interruptions to their businesses, the financial expense, and the emotional costs, and I knew that the impact had to be as great, if not greater, on the other side. I thought there had to be a better way to resolve these very personal disputes. The more I participated in alternative dispute resolution (ADR), the more it became clear that ADR was the solution, and that's how I found my calling.

Additionally, ADR affords my clients self-determination and confidentiality that you don't necessarily get in the courts or with some of the administrative agencies. There's also the time factor: It was quicker and much more efficient. It cuts down on a lot of the discovery, which comes with its own financial expenses, both in terms of human capital and financial capital. ADR really provides the parties an opportunity to be heard, resolve the case on their own terms, and if they can't resolve it, at least be given enough information to fully assess where they're going and how they're going to move forward. And as an administrator of ADR, NAM provides the resources to expedite cases in a cost-effective and time efficient manner.

My experiences and my humanity allow me to connect with the parties in an authentic way.

As an employment law specialist with NAM, what is your approach when mediating a dispute?

I don't have a one-size-fits-all approach. I've been told I'm very relatable. I try to establish a rapport with the parties to make people comfortable and to gain their trust and respect. I begin by explaining the process, setting the stage to minimize surprises. With virtual mediation, which has become the go-to forum for hearing cases during the COVID-19 pandemic, this has become even more important, as I want to make the parties comfortable with the technology. I'm constantly trying to facilitate a resolution, and when it's appropriate, I'll evaluate as well. I sincerely try my hardest to resolve each and every case, because I believe it's best when the parties control the outcome and fashion their resolutions.

If it's a dispute in which the opposing parties are particularly contentious, how do you bring them together?

Well, the very nature of the disputes that I mediate causes contention, especially when individuals are accused of discrimination or harassment. I always ask the parties to remain respectful in joint sessions. When there is yelling, or even tears, I remain empathetic while striving to restore calmness and rationality to the room. I do my best to keep the parties talking and engaged in the process, to find points of agreement so that I can help them reach a deal, because I believe that the more you have people talking, the more they're committed to the process. 

If a dispute isn't settled in mediation, I will continue the dialogue a day or so later to see if the parties have begun to rethink their positions, because I've found that when it's the mediator reaching out, neither side will view reengaging with the process as a sign of weakness.

What considerations should a company make in determining whether they should institute ADR provisions, and how should they go about it? In other words, why arbitrate or mediate?

As I said before, ADR offers a quicker, less expensive, less disruptive, and confidential way to resolve all sorts of business disputes. It gives the parties the ability to fashion their own resolution. It takes the power away from third parties, such as the judges and juries, and places the control back in the parties' own hands. That self-determination is a big factor in getting people to fashion some type of a resolution. As an attorney, I would always recommend that my clients participate in ADR because there's really nothing to lose and everything to gain. NAM administrates employment ADR programs and the arbitration/mediation of commercial matters in accordance with NAM's rules and procedures and, subject to NAM's approval, in accordance with the customized and nuanced ADR provisions that are contained in the employment program or agreement between the parties.

In the design phase of a corporate employment ADR program, how could a company ensure that they are providing a level playing field?

That's a simple answer: By engaging a third party like NAM to administrate a corporate ADR program, the company can ensure that they're providing a level playing field. The administrator would be the one providing the list of neutrals for the parties to choose from. NAM has clear written rules that are not created by the employer. The program takes the process out of the court system, and yet NAM has a process that duplicates the function of a court, but gets it done in much less time and for much less money. There are case managers to help guide a pro se through the process, which is also a big step in leveling the playing field. The assigned case manager helps facilitate the process for the party, and can bring issues to the arbitrator very quickly, as they do not have the backlog that courts have, and they can devote personalized attention throughout the process – from the selection of the arbitrator to any discovery issues, all the way through the arbitration itself.

When there is yelling, or even tears, I remain empathetic while striving to restore calmness and rationality.

What are some trends that you see emerging with respect to employee-sponsored programs, and how might that change in the future?

Well, to state the obvious, COVID-19 has changed the world in so many ways. I might have answered this question differently six months ago, but as companies and employees become more familiar with ADR and corporate sponsored programs, and now with the frequent and ubiquitous use of virtual conferencing and the slowing of the court system, I believe that more and more companies and employers are going to be seeking faster, more efficient ways to resolve disputes, and an ADR program is the answer.

Has the coronavirus pandemic affected the way you mediate cases, and what do you foresee in terms of ADR in employment disputes as we emerge from the pandemic?

The coronavirus has absolutely affected the way I mediate cases. As we've already touched on, the mediations have all been virtual for the last several months. NAM made this transition seamless, offering four videoconferencing platforms, and customized technology for Zoom that is HIPAA complaint.  It also has an experienced IT team that's always available, if needed.

As time has gone by, more and more people have become familiar and comfortable with the virtual platforms, and there's less reluctance to participate. Although parties are not actually sitting in a room next to their attorney during the mediation, the virtual breakout rooms offer the same type of privacy, and parties are more comfortable in their own homes. The virtual platform allows for participation by anyone with access to a computer or mobile device throughout the country, or quite frankly, throughout the world, without the cost of travel. Really the only thing that has to be managed are the different time zones. The occasional appearance of a dog or a child hasn't diminished the effectiveness of the process. In fact, it often humanizes it.

As for the substance of a mediation, I've found that parties have been more motivated to resolve their differences during the pandemic. Employees that have been furloughed or those that are not working are more interested in a settlement than ever before, especially if they were working for an employer that has not yet reopened or has reopened in a limited capacity. There has also been a lot of concern by employees about the ongoing viability of their employer. And for their part, many employers would like to resolve these matters so that they can stop devoting time and resources to claims in these trying and uncharted times. 

I believe that there will be many more cases as a result of the employment decisions being made due to the pandemic, including hiring, firing, accommodations, working from home and returning to the workplace. 

How do you envision the future of employment law matters as it pertains to ADR?

I have always believed that employment cases should be handled through some form of ADR, which, again, is why I became a mediator. And that's even truer now than ever before, during this pandemic, as courts around the country have slowed their calendars. Some have even stopped taking civil trials. This is creating a backlog in the court system, forcing parties to seek alternatives to litigation. ADR is a tried and tested format for resolving these kinds of disputes, and as more and more employment cases are participating in the process, more parties are getting to experience firsthand, just how effective and beneficial it is. I believe that ADR and Virtual ADR are here to stay, and that there will actually be a continued increase in its use. From beginning to end, ADR is not only less expensive and more expeditious than going through the court, it's also easier when you work with an experienced administrator like NAM.

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