MANHATTAN (CN) – Months before receiving the most famous appointment of his career, Special Counsel Robert Mueller had a dramatically different assignment as the court-appointed mediator tapped to resolve litigation over Volkswagen’s emissions scandal.
Tapped for the job by U.S. District Judge Charles Breyer in January 2016, the former FBI director worked at a dizzying pace toward a resolution over the next three months, freeing up his calendar to head the Russia investigation a little more than a year later.
Mueller’s investigation of Russian interference in the 2016 election became perhaps the most intense and dramatic criminal probe in a generation, jailing several top allies of President Donald Trump and culminating with a nagging controversy about whether Trump obstructed justice.
By its very nature, mediation induces far less anxiety. No resolution can be reached without mutual consent by the parties, and the mediator is less a referee than an intermediary. Discussions occur behind closed doors, insulated from media and public debate.
They are also increasingly becoming a judicially encouraged mode of dispute resolution.
“I think courts are more and more inserting mediation as a requirement before full-fledged litigation,” said Ken Feinberg, a prominent attorney who served as special master himself when Chrysler faced claims about its diesel emissions.
Feinberg noted that New York federal courts for the last year have been home to “a sort of mediator’s pro-bono panel,” on the heels of an 18-month prototype in Manhattan’s Commercial Division.
The New York Law Journal noted in a March article that the court-ordered program helps draw otherwise reluctant parties to the negotiating table.
“In mediation, it takes ‘two to tango,’ and it is unlikely we will see one side sticking its neck out to admit willingness to negotiate without knowing if the other side feels the same way,” the article says. “Many clients are also reluctant to talk about mediation at the beginning of a legal battle because it might be viewed by their adversaries as a sign of weakness at such an early stage, and that one side, acting alone, would be reluctant to show such a hand.”
Reflecting increasing interest in mediation from the federal judiciary, U.S. District Judge Richard Berman will host a course on the subject Tuesday at 6 p.m. in the ceremonial courtroom of the Southern District of New York.
The district’s chief judge Colleen McMahon will be in attendance, as will the Second Circuit’s chief judge Robert Katzmann and several other prominent attorneys and jurists.
Judge Berman’s interest in mediation traces back to the earliest days of his career. Before his federal judiciary appointment by President Bill Clinton, Berman had been sworn into his post at Queens Family Court by then-New York City Mayor Rudy Giuliani. One of Berman’s most high-profile cases in that position had been the messy child-custody proceedings of Mets outfielder Carl Everett.
“Family court is a place where you would like to work things out,” Berman noted in an interview in his chambers.
When Everett’s case landed in Berman’s courtroom in August 1997, allegations that the athlete physically abused his young son and daughter sparked uncommon media interest in Queens Family Court. Everett constantly appeared in the tabloids for his fundamentalist views denying the existence of dinosaurs, expressing his belief that the moon landing was faked and, allegedly, abusing his children.
The child-abuse scandal drew Everett to court, and Berman ruled that the press and public had the right to access those proceedings.
In an interview, Berman recounted how a breakthrough occurred after dramatic testimony by a 21-year-old case worker who ran the day care center at Shea Stadium, the then-home of the Mets.
