After 28 years on the Supreme Court bench with 21 years as the Presiding Justice of the Trial Assignment Part in the Supreme Court, Nassau County, I have retired. I will continue to help resolve cases with Mediation Solutions of NY, LLC.
I look forward to the transition. Although a major part of my job in TAP was to conference and settle cases, I will no longer have the ability to say, “Go pick.” But that should never be the sole role of a TAP Judge. I, together with our JHOs, settled 80% of the cases on the Trial Calendar.
One of the most satisfying parts of the role comes when two sides that were far apart can come together and resolve the case. How does that happen? First, there must be a desire on both sides to bring the case to an acceptable conclusion.
Next, as with everything in trial practice, preparation is the key word.
Counsel must know their cases, both factually and legally. The most impressive attorneys are ones who can answer a mediator’s questions. One of my most favorite questions to a plaintiff’s attorneys was, “How old is your client?” Of course, this is an important question in evaluating a case. But many attorneys had to flip through their Bill of Particulars to answer the question. Not an impressive start.
Let’s address liability first. Will the defendant concede liability, for example, in an auto case involving a hit in the rear? With serious injuries, plaintiff’s counsel will often jump right to injuries. But a phrase like, “Plaintiff made a left turn” of course raises comparative negligence issues, which must be factored into the settlement value of the case.
In a medical malpractice case, defendants may raise several viable defenses, including risk of the procedure, comorbidities, judgment call, and the plaintiff’s or decedent’s comparative fault.
In a commercial case, the source of settlement funds is different from those in negligence or personal injury cases. In the latter, we are often dealing with insurance coverage or self-insured retentions. In contrast, commercial litigants are generally dealing with their own money, which can have a very different effect on settlement discussions.
This is one of the reasons why commercial litigants themselves should be present at a mediation. It provides the mediator with an opportunity to speak individually with the parties who may have been locked into their positions, for example in disputes between homeowners and their contractors. The attorneys have, hopefully, advised their clients of the pros and cons of their cases in advance of the mediation. But the opinion of an independent third party in the form of the mediator may be enough to resolve these issues.
The importance of providing the litigants with an independent third party who will listen to them talk about their case cannot be overstated. Some parties simply want to be heard, and that is enough to move the case to a resolution.
Another important preliminary issue is insurance coverage. This question often arises in construction cases involving Labor Law Section 240 and issues of contractual indemnification or additional insureds under the insurance policy. In these cases, factors that may affect the success of the mediation include whether these issues have been resolved, or whether there is a declaratory judgment action pending. If all parties with an interest in the potential settlement, including excess insurers are present, a serious discussion can be held. If liability is not an issue, a reasonable offer to the plaintiff can resolve that serious part of the case.
In some cases, there will be no insurance coverage, such as when the case involves a bar fight or where there is a reservation of rights under a homeowner’s insurance policy. In those cases, it is helpful to know whether the defendant has assets that could be used to settle the case. If not, is there any possibility that a payout can be agreed upon? Again, this is a situation where the parties need to be present. In these cases, it is particularly important to execute a written agreement memorializing the settlement.
In the negligence/personal injuries case do a thorough verdict search. Have a reasonable discussion with your client about the parameters of a settlement. What is the sustainable value of a verdict? Review cases in the venue where the case is pending.
Are there liens? Has the plaintiff taken a litigation loan? These amounts affect the resolution of the case and must be factored into any final settlement.
Modern technology allows for mediation to be conducted either in person, virtually, or a hybrid, where some parties appear in person with the mediator while others attend online. There are advantages and disadvantages for each approach.
Appearing in person for the mediation allows you to look the other parties in the eye and evaluate attitude and demeanor. A party sitting in a conference room is often more amenable to a resolution than one sitting distantly at home or in an attorney’s office. I believe conducting a mediation in person also demonstrates the seriousness of the proceeding. This is especially true when a “money person” for the defendant is present in person. The virtual mediation format lacks these advantages but allows for less travel time and practice disruption for both the parties and their attorneys.
I will conclude with the most important element in a successful mediation: TRUST.
Counsel need to trust that the mediator will not disclose to their adversary their final position or any other information they request to be kept confidential. As a TAP judge, I have had counsel for both plaintiffs and defendants say, “I can’t try this case.” It is important that this information be kept confidential when negotiating a settlement so that the other side does not receive an unfair advantage.
I tell my students at Hofstra that in a deposition memo a comment must be made about the demeanor of the witness. That presentation is an important factor determine whether the witness can be produced before a jury and is also an important factor in evaluating a case during mediation.
I look forward to working with The Bar to continue to bring cases to a conclusion.
Hon. R. Bruce Cozzens, Jr. (ret)
Read Justice Cozzens’ full bio here.