Mediation Solutions commercial mediator Steven L. Levitt, Esq. has a wealth of experience he brings to his role as a mediator. We sat down with him to learn more about his philosophy and approach to mediation.
Can you give us a little background about your career and how you got into mediation?
I am the Founder and Principal Partner of Levitt LLP. Over the course of my career, I have tried and/or resolved in excess of $2.8 billion worth of complex (and often highly technical) business, contract, business divorce, and trade secret disputes before trial courts, appellate courts, and arbitration tribunals across the country, as well as internationally.
Throughout my career, I have represented companies of all sizes, ranging from family businesses to household names across Long Island, New York City, and beyond. A few of our clients include L3 Harris, Loral Corporation, Mercury Systems, Inc., East Coast Petroleum, Inc., GFI Capital Resources Group, Inc., Snapple Beverage Corp., and Hartz Mountain Industries, Inc., as well as numerous well-known law firms, accounting firms, and medical practices.
I have seen many clients who were unhappy at the end of litigation, particularly in commercial cases. Mediation presents an opportunity to create a more balanced outcome that can result in both sides getting at least some of what they want.
Steven L. Levitt
Some of my party opponents have included the Sultan of Brunei, the Sultan of Oman, Lockheed Martin Corp., British defense contractor Serco, Inc., The Men’s Wearhouse, Inc., global freight forwarder Kalitta Air LLC, and Westchester real estate mogul John Fareri. I have overseen teams of attorneys across different law firms, in multi-venue litigations nationwide, including California, Colorado, Wisconsin, Nevada, Oregon, Wisconsin, Connecticut, Florida and Virginia.
I have taught the Maurice A Deane School of Law at Hofstra University and lectured at Hofstra’s Zarb School of Business. It is important to me to actively participate in my local community, and as such I am a sitting member of the Zoning Board of Appeals for the Incorporated Village of Muttontown.
I have seen many clients who were unhappy at the end of litigation, particularly in commercial cases. Mediation presents an opportunity to create a more balanced outcome that can result in both sides getting at least some of what they want.
I joined Mediation Solutions as an arbitrator and mediator in commercial, contract and trade secret matters to bring my trial and negotiation experience to help Mediation Solutions’ clients resolve their disputes.
What advantages do you see for lawyers and their clients who choose mediation to resolve their disputes?
The mediation process helps to remove ego and anger from the dispute resolution process in commercial cases. Mediation helps attorneys and their clients more objectively evaluate the strengths and weaknesses of their case.
Through mediation, the parties often come to realize that there is a business resolution that can be developed, even if it might not be readily apparent. For example, in large companies one division may not realize that there is a sister division that has faced a similar problem. When they look outside of their box and look into the next box, they may learn something that could resolve their dispute. It might be as simple as payment over time or other opportunities, or it may come through people they know in common. The process of mediation often helps businesses identify those alternatives.
Even when a case proceeds to litigation, mediation provides litigants with valuable insights about both costs and risks associated with bringing a case to trial. It is worthwhile to mediate before entering into a costly and emotionally draining litigation that can take years to resolve.
Mediation provides litigants with valuable insights about both costs and risks associated with bringing a case to trial.
Steven L. Levitt
Mediation also circumvents some of the other (possibly unexpected) business interruptions that can occur with litigation. Litigation is a huge time commitment and is disruptive for owners and employees. It is often a draining process that forces owners to question how their employees’ judgment and decisions may have led to the litigation. As a result, employees may think they’re constantly being second guessed, which can have a significant long-term impact on productivity.
In addition, most clients don’t understand the litigation process or what is involved. They may not understand that they can have great liability and no damages. For example, in a case where an employee embezzled inventory and changed the records, making it impossible to track the inventory. No expert can prove the absence of records, so there may be no way (or only a few very expensive ways) to prove the damages. A good mediator can help clients better understand what might happen if they pursue litigation.
Some business clients may ask, “Why should I mediate if it is non-binding?” For many business clients, something has to really go wrong before they would sue; they have often already tried to talk through the dispute and found they couldn’t get anywhere. As a result, sometimes parties don’t immediately see the benefits of mediation. However, they might reconsider that position if someone showed them what’s really involved. Mediation can provide that education.
Mediation can also be helpful in commercial cases to help resolve some of the interim issues that arise that can slow the process down. For example, the parties to litigation in a commercial case may have discovery disputes that can bring the litigation to a grinding halt, while all parties must wait for motion practice to be resolved in the courts. Bringing those discovery disputes to a mediator can help move the discovery along, even if the case is not fully resolved in mediation.
What do you think are the most important qualities of a good mediator? What should the parties be looking for in a mediator?
A strong mediator needs to have life experience as well as expertise in the field in which they are mediating. A capable mediator fully understands not only the potential outcomes and alternate paths to resolution, but also the full range of a client’s possible expectations, be it of their human resources, customers, or subcontractors. A skilled mediator understands what is reasonable and practicable versus what is simply beyond the pale.
A good mediator should provide a sounding board. He or she should educate the parties on what litigation will look like, including the costs, both out of pocket and indirect (such as loss of productivity), will be, and what they will end up with, even if they are successful.
A strong mediator needs to have life experience as well as expertise in the field. A good mediator should provide a sounding board. The mediator should explore how the parties define success.
Steven L. Levitt
The mediator should explore how the parties define success. For example, as a result of a recent FTC rule, in the near future businesses will no longer be able to enforce the injunctive aspect of a non-compete agreement. If the suit is about a non-compete agreement, are you expecting to enforce it or are you sending a message to other employees?
Can you tell us a little bit about your philosophy or the approach you take as a mediator to help the parties reach a resolution?
I think clients should consider talking directly with the mediator, and the attorneys should let the mediator ask the parties uncomfortable questions. Ask them, for example, “How are you going to prove your damages? And what if you can only prove 40% of those damages – are you OK with that?”
It is also helpful to speak separately with the attorneys. Put in a pitch to the lawyers – ask them, “Do you want to do this case? Who’s driving the bus? What is your honest evaluation of this case? Is it the best use of your client’s time, their employees’ time, or your time?”
What can the parties expect from the mediation process?
The parties should expect the mediator to provide an honest evaluation of their case, a frank discussion of the pros and cons, an education about the true costs litigating, and some tough questions about how they want to proceed.
What are the three main things you wish the parties would do in preparation for mediation?
First, be serious or don’t mediate. Honestly evaluate your strengths and weaknesses as well as the other side’s strengths and weaknesses before you get to the mediation.
Second, handicap your damages and your liability. Evaluate the probability of liability success, determine a realistic damages number, and be ready to back that up in the mediation. If you think you have a 70% chance of success, be prepared to explain why. Have concrete proof to support the damages you are requesting.
Third, look good in front of your client. Be prepared. The client is going to evaluate how you present their case to the mediator. Be prepared to answer the mediator’s toughest questions.
Learn more about mediator and arbitrator Steven L. Levitt by reading his bio here. To schedule a mediation or arbitration with Steven, contact our office at 631-415-4310.