PART 4: SPEED MEDIATIONS, WHERE IS THE LOVE?

Recently, Governor Andrew Cuomo of New York tweeted: “Everyone has to think outside the box—because there is no box.” So putting politics aside and faced with court systems (in so many states) that are shut down, The Socially Distant Lawyer (“SDL” and we love the third person) wonders what else can we consider to apply “out of the box” solutions to the massive problem of litigation backlog. Now, you may remember that we threw out the ideas of Offers of Judgments in New York and summary bench trials in New Jersey (or any state). What else could be left?
 
The SDL understands that “Speed Dating” is often defined as two people who meet and talk for about three to eight minutes. If they hit it off, the speed dater submits a note if he or she would like to see that person again for a formalized date. Our research reveals that some of the popular questions, asked in initial brief encounter, are “what makes you unique,” “what is something you're proud of,” and “what is something that bugs you.” We are not sure if “what’s your sign” is still a thing, it’s been a minute.
 
What if we applied some speed dating concepts to mediations? Like a “Speed Mediation” of sorts in troubled times.
 
First, counsel would agree to talk for a few minutes. In that conversation, the plaintiff would make a settlement demand and the defense counsel would respond with an offer. With the initial numbers exchanged, in let’s say one business day if the parties’ felt that the first volley was productive, the formal Speed Mediation would be scheduled to take place forthwith.
 
Since we are socially distant, the mediation would take place on video chat or conference call. The defendant would be required to have on the call the proper person with full authority to settle. The plaintiff would be similarly required to attend for the entire process.
 
Now, here’s where things can go really out of the box. There doesn’t need to be a mediator. There could be one if the parties believe it is critical. Everyone should be encouraged to enter into a conversation (privileged of course) that would create a constructive path to closure. The “rules” can be somewhat loose. The SDL has completed several “Zoom Mediations” and can say candidly that it feels different. It is definitely less formal and maybe that’s not a bad thing. For Speed Mediations, no openings or mediation statements would be needed (although the plaintiff would be encouraged to substantiate the damages and liens). Just get right down to business like professionals. Questions like “what makes this case unique," "what part of the case are you most proud of,” and “what bugs you about the case” could be asked (don’t ask about “signs”).
 
Like a speed date, these Speed Mediations should be limited to one hour and that is all. Either the parties are serious about the process or they are not. How many times have you been a mediation and known it was a waste of time in the first five minutes? This type of speed mediation would drastically reduce costs but would demand focus.
 
The use of Speed Mediations, without a mediator, also can correct a major problem in the industry. Yes, we all have mediators that we like, even the SDL. But mediation has grown into such a big business, that many mediators are hesitant to intensely push counsel and clients to a settlement for fear of not getting the next mediation. In the end, what matters is not whether mediator is defense orientated or not. The question is does the mediator (and we know this phrase is disfavored) “crack heads” and get the case closed. When the SDL was a young attorney (so many years ago), there were certain mediators (retired judges) that you just would not cross. Even if these Speed Mediations are somewhat successful, this new settlement path could cause mediators to take notice and raise their level of performance. This doesn’t mean you would not argue your position, but you knew the forum required respect. Remember the SDL “respects those that tell me the truth, no matter how hard it is” (Michael Corleone – The Godfather).

Christopher Fusco

Mr. Fusco has been a founding partner of the Firm since 2001.  Mr. Fusco is also the Firm’s Managing Partner. Mr. Fusco's practice concentrates on the defense of the Firm's clients in commercial, construction, insurance, transportation, general liability, public entity, constitutional law, and high-profile tort litigation.  He has completed major jury trials including negligence cases, NY Labor Law lawsuits, and alleged police misconduct constitutional law claims.

Prior to being the Firm’s Managing Partner, from 1992 through 1996, Mr. Fusco was an Assistant District Attorney with the Kings County District Attorneys Office in Brooklyn, New York.  As a Senior Trial Attorney, he was responsible for managing major felony cases.  He completed over fifty jury trials including cases involving murder, armed robbery, and undercover investigations.  He was assigned high-profile cases with special victims.  Mr. Fusco also drafted and successfully argued People's Appeals before the Appellate Division.

From December 1996 to September 1998, Mr. Fusco was an associate in the New York City firm of Wilson, Elser, Moskowitz, Edelman & Dicker where he specialized in complex construction, commercial, labor, insurance coverage, professional liability, employment, civil rights and personal injury litigation in both federal and state courts.  Mr. Fusco completed jury trials involving negligence and construction cases. Mr. Fusco was also responsible for handling corporate and construction-related contractual and lien law disputes.

From September 1998 to October 2001, Mr. Fusco was a partner in the firm of Wright & Fusco, LLC where he successfully defended mass toxic tort actions filed against major chemical and asbestos manufacturers.  In addition, Mr. Fusco was responsible for managing the firm's insurance defense and transportation clients.

https://www.callahanfusco.com/christopher-g-fusco
Previous
Previous

PART 5: AFTER CORONAVIRUS, WHAT WILL BE THE MOOD OF THE JURORS?

Next
Next

PART 3: NEW JERSEY MUST MOVE TO SUMMARY BENCH TRIALS