TOP MEDIATORS CONVENE AT THE SDNY U.S. COURTHOUSE IN MANHATTAN AND DISCUSS INCREASED USE OF MEDIATION IN FEDERAL CIVIL CASES
On Tuesday evening, May 7, 2019, Ken Feinberg, Esq. was the first of several prominent speakers, along with Hon. Barbara S. Jones and Theo Cheng, Esq., who participated in an impressive and valuable program entitled, Mediation in 2019. The program was held in the Ceremonial Courtroom of the Daniel Patrick Moynihan Courthouse in Foley Square. The stately courtroom was packed with lawyers — including prominent mediators — and allied legal professionals who came to see and hear an “All-Star” Panel of Mediators share their advice and experiences and speak about some of their high profile cases as part of a continuing legal education program sponsored by the SDNY and the Second Circuit. The increasing popularity and utility of voluntary non-binding mediation was very much the topic and the theme.
Ken Feinberg, the most well-known mediator, had flown up from Washington, DC, at the request of moderator Judge Richard M. Berman. Judge Berman, always charming, attentive and compelling, is clearly a persuasive “people person” and all the speakers agreed that one cannot say “no” to Judge Berman.
ARBITRATION DIFFERS FROM MEDIATION – CASE IN POINT: THE ZAPRUDER FILM
Feinberg warmed up the audience with a story about his arbitration (not mediation) of a dispute over the U.S. Government’s “taking” of the famous Zapruder film showing the assassination of President John F. Kennedy in Dallas in 1963. The Zapruder family complained after the Federal Government had seized the film and was offering them $1 million dollars which was the Government’s estimate of the film’s value. Not surprisingly, lawyers were retained, and experts were called upon to testify, to resolve the value of the film and how much the Government should pay. The Zupruders’ experts, retained from major auction houses, contended that the film was worth $32 million. Ken Feinberg was one of the three arbitrators, who, with the “wisdom of Solomon,” determined by a 2-1 vote that the Government owed the Zapruders $16 million. Feinberg’s key point was that mediation, the subject of the evening’s discussion, is not arbitration, and that mediators do not themselves decide the result.
THE PLUSES OF MEDIATION
It makes sense that Judge Berman is a fan mediation, given his Family Court background and his MSW degree. He encourages parties to resolve their cases through settlement. Although he frequently determines the results of litigation disputes himself, he is also an enthusiastic advocate of consensual resolution where feasible. But both Judge Berman and retired SDNY Federal Judge Barbara S. Jones made it clear that acting as a mediator is not like being a judge. In fact, when someone calls Barbara Jones “Judge” at a mediation, she typically responds: “Please call me Barbara.” This informality puts the parties at ease and reminds them what a different process mediation really is compared to litigation and arbitration.
BREAK OUT AND JOINT SESSIONS
In mediation, there is often little or no testimony from experts. The usual mediation process, following an initial meeting with both sides, entails the mediator dividing up each side into a separate caucus. At a breakout session, the mediator listens closely to each side about their respective positions and what they want to accomplish. Mediations are in the main assisted negotiations. The mediator goes back and forth with demands and offers (and counter demands and counter offers), while, at the same time, the mediator asks questions and makes comments about the dispute, so that each side can more objectively and realistically consider the facts and think about what might happen if the case were to go to a verdict. Through this process, the “demands” for settlement by the plaintiffs tend to become more realistic, and the offers of the defendants, similarly, tend to increase. With good faith persistence on the part of everyone — including the mediator — an agreement may be reached voluntarily to resolve the dispute. No judge, no jury, no arbitrator is needed to decide the dispute.
Ken Feinberg shared that, in advance of mediation, he likes both sides to prepare and submit a mediation document: a brief, a memo, or even a letter outlining the case as they see it. He also likes to meet with each side individually in advance of the mediation, so that he gets to know the people and to be sure that he fully understands the issues and each party’s position. Feinberg wants the parties to “get invested” in the mediation and not discount the process. His goal as mediator is to make sure both parties (sides) understand, as much as possible, why the other side may have a different idea of a reasonable settlement. This understanding can help both sides see the wisdom of compromise and of settling the dispute, instead of continuing towards an uncertain result at trial.
MEETING IN THE MIDDLE
Feinberg prefers mediation because the process is voluntary and consensual and also relatively inexpensive and quick, compared to a trial. He often likes to meet with both sides separately for up to two hours (or more if necessary) to allow them to lay out their positions. The more involved the participants are, the more they become invested in the mediation. A mediator will usually convey to the other side any change in position. Often, when parties are close to a settlement, Feinberg believes it is advantageous for the principals to talk directly to each other (“face to face”) in a private session. Depending on the nature of the case and how close they are to an agreement, principals can often “close the deal,” and afterwards, resume doing business together with the dispute behind them.
In some instances, when mediation has brought the parties close to settlement, Feinberg is requested by the parties to decide the final resolution amount himself, which is somewhat of hybrid mediation/arbitration function. And to that point, mediation is very flexible, where arbitration or litigation are generally more complex and rigid.
Feinberg was an authoritative and dramatic speaker. Although Judge Berman introduced him as “America’s Mediator”, to me, Feinberg seems more like “America’s Problem Solver.” He is most famous for, among other matters, distributing billions of dollars to the victims of the September 11, 2001 attack, the Boston Marathon Bombing, the Sandy Hook school shooting, and for assisting the victims of the 2010 Louisiana Oil Spill, along with managing the financial aftermath of many other catastrophes. This work is not mediation, he pointed out. But it certainly shows the depth and breadth of his expertise and experience in achieving solutions to difficult problems.
HON. BARBARA S. JONES
As the second speaker, Judge Jones stated that she had learned one important lesson from participating in the evening’s event: “Never agree to speak right after Ken Feinberg!” But she certainly more than held her own. She has already become a “go-to” neutral in many important matters, including, among many other matters, discovery in the Michael Cohen SDNY case, arbitrator of discipline imposed by the NFL upon running back Ray Rice, Independent Review Officer for the International Brotherhood of Teamsters Union and Panel Member reviewing NYPD disciplinary policies.
Judge Jones spoke in some detail about the dispute she decided, upon appointment as arbitrator by the NFL, involving running back Ray Rice. Judge Jones ultimately found that the NFL’s decision by the NFL Commissioner to impose an “indefinite suspension” based upon Rice’s alleged domestic violence conduct, was arbitrary. She reversed Rice’s indefinite suspension and upheld the original NFL two-game suspension. The incident was widely known to the public through video that had been captured by elevator cameras.
Judge Jones was an excellent speaker, low-key but powerful and capable. Her very warm personality and empathy pervaded her presentation. She drew a big laugh discussing how to break the news to one side of a dispute that their position was weak. My interpretation of what Judge Jones actually suggested: Mediators have to find a nice way to tell people the weakness or bad news about their case. No easy task!
THEO CHENG, ESQ.
Theo Cheng, the final presenter and the youngest, is already an experienced speaker and very accomplished and personable mediator. It was easy to see why he has been “tapped” into so many mediations and arbitrations involving high-tech, telecommunications, entertainment, consumer products, intellectual property, and financial business disputes. He gave a high energy presentation and displayed a witty sense of humor. Cheng had a suggestion about moving mediations forward when the parties appear to become inflexible and refuse to move from their established positions. That is, he asks the opposing sides to endeavor to “switch chairs” (stand in the other’s shoes), take a break, and have private conversations. When the parties invest “emotional capital,” it helps to preserve relationships and bring the matter to resolution.
Cheng also talked knowledgably about the importance of court annexed mediation. He is a valuable and highly sought-after mediator in the SDNY’s important and growing mediation program headed by Rebecca Price. He is, similarly, very much involved as pro bono mediator in the Second Circuit’s 30 plus year old appellate mediation program (CAMP) headed by Kathleen Scanlon and Dean Leslie.
Based on his experience and winning personality, one gets the feeling that Theo Cheng could help resolve most any dispute, regardless of the subject matter.
The takeaway from the May 7, 2019 program is that mediation is becoming more and more prevalent and popular as a mechanism to resolve disputes. Mediation focuses on bringing the parties to a consensual voluntary agreement. It seeks to preserve relationships and to resolve matters quickly and with considerable savings of time, money, and relationships. It was clear that the empathetic personalities of the mediators who spoke that evening have been among the key factors in their success. Perhaps along with their keen senses of humor.