Mediation Experts Tout Successes of Below-Radar Parley

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.

U.S. District Judge Richard Berman poses for a photograph in his chambers at the Southern District of New York. (ADAM KLASFELD, CNS)

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.

“You could have heard a pin drop in that courtroom,” Berman recalled. “It was a hushed silence.”

After that caseworker testified that the daughter wore a ski parka in the summer to hide her bruises, the parties quickly sought to resolve the case out of the public eye.

“Who wants to go to trial on whether you abused or neglected your child?” Berman asked.

Everett and his wife eventually came to a settlement agreement in October, which, as the New York Times recounted, allowed the parents to reunite with their children within a year if they underwent therapy, attended parenting classes and visited their children twice a week in foster care.

Berman’s background gives him a special tool for finding common ground: The National Association of Social Workers bestowed him with a leadership service award in late March.

“I’ve been a licensed social worker since 1996 and have found social work skills to be indispensable both as a family court judge and as a district court judge,” Berman said.

New England Patriots quarterback Tom Brady holds the Vince Lombardi Trophy after the Patriots beat the Carolina Panthers 32-29 in Super Bowl 38 in Houston on Feb. 1, 2004. (AP Photo/Dave Martin, File)

After Berman became a federal judge, a different high-profile sports case would again put him in the national spotlight: the so-called Deflategate scandal of New England Patriots quarterback Tom Brady.

From “Spygate” to “Bountygate,” the National Football League had been wracked by repeated scandals and wanted to make an example out of Brady, who was accused of using underinflated footballs to get a competitive edge in a Jan. 18, 2015, championship matchup against the Indianapolis Colts.

Before penalizing the quarterback, NFL commissioner Roger Goodell put his own personal stamp on the arbitration proceedings.

“Goodell kept the arbitration before himself, which frankly, I think was a mistake,” Berman said.

Berman regularly interrupted the federal court hearings with attempts to broker a resolution inside his chambers, where the parties refused to meet each other at the halfway line.

“We did try a form of mediation simultaneously,” the judge said.

Ultimately, the league and Brady’s union refused to reach an agreement, and Berman issued a ruling in Brady’s favor that overjoyed Boston. A Dunkin’ Donuts franchise in Lewiston, Maine, offered the federal judge a lifetime of free coffee, even though the Second Circuit ultimately overruled Berman’s decision the next year.

One former colleague of Berman’s from the Southern District of New York, ex-Judge Barbara Jones, will speak at his panel about a similar NFL fracas: an arbitration involving Baltimore Ravens running back Ray Rice, who was taped assaulting his fiancee in an elevator. The incident came to a head after TMZ put the footage on blast in March 2014.

Jones already had transitioned into private practice by the time she heard Rice’s appeal at an arbitration.

Like Berman, Jones overturned the league’s indefinite suspension of Rice as “arbitrary.”

A federal judge tapped Barbara Jones of the Bracewell firm to serve as special master on privilege issues in the Michael Cohen investigation. The announcement came at a hearing on April 26, 2018, in Manhattan federal court. (Photo via Bracewell.com)

Asked about the episode in the 49th story offices of her law firm Bracewell, where she serves as a partner, Jones took care to emphasize that those proceedings were not a mediation. One of her other most famous assignments, as special master in the discovery dispute of Trump’s former fixer Michael Cohen, also did not fit that bill.

“Look, mediation is about reaching consensus,” Jones said. “The Cohen case was not about consensus.”

In both of these matters, Jones issued binding decisions, yet she is appearing in Berman’s “Mediation in 2019” event to discuss her broader work in alternative dispute resolution, an umbrella term for all techniques for resolving controversies short of litigation.

A fellow Clinton appointee, Jones has experience in mediation but she declined to describe those cases for reasons of confidentiality. Discretion forbade her from detailing any behind-the-scenes wrangling in the early stages of the Cohen probe.

Reluctant to share details and choosing her words deliberately, Jones said one benefit of mediation is the “ability to have a private conversation.”

“As you explore, most people start moving toward solutions that are acceptable to the other side,” she said.

Feinberg, who is speaking before Jones, noted that mediation leaves less of a public record than litigation.

“There’s a tension between a public trial with full transparency and mediated settlement, private settlement, where the only time that the public knows about the settlement is at a fairness hearing or something, but you don’t know what transpired in the backroom to get to ‘yes,’” he said.

That thought made Feinberg wax philosophical about the judiciary’s burgeoning interest in different forms of alternative dispute resolutions.

“I think mediation is a good idea, and I live by it,” Feinberg said. “But it’s never going to replace, really, the trial system. The trial system in this country, it’s part of our heritage, our history.”

“It’s not going to change,” Feinberg continued, pausing pensively before adding: “Nor should it.”

Boasting an extensive and even storied career in alternative dispute resolution, Feinberg served as a court-appointed special master in the Agent Orange litigation, asbestos personal injury case and the 9/11 Victim Compensation Fund, but he also retains a passion for traditional litigation.

“You pick your lawyer, I’ll pick mine: Judge and jury, in every court, in every village, city, town, hamlet in this country, you have the adversary system,” Feinberg said. “Nothing’s going to change that as the dominant procedure for resolving disputes.”

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