Complex ADR – The Importance of Reading and Understanding Materials
During my time on the bench, I presided over thousands of civil cases involving a variety of specialty practice areas including commercial, medical malpractice, toxic tort and personal injury law. I learned early on that an essential requirement for being an effective jurist was to be prepared for every matter I was assigned to, regardless of its nature and complexity. Excellent preparation meant doing my homework, carefully reviewing the parties’ papers, and thoroughly analyzing the facts and legal issues applicable to their cases. For example:
In handling personal injury matters, I analyzed insurance laws, spoke with adjusters and researched medical issues to calculate any damage awards based on certain factors, such as the plaintiff’s injury, pain and suffering, and pre-existing conditions. In order to resolve toxic tort/lead paint cases, I had to learn how many micrograms per deciliter could be detrimental to a child’s health and any historical information to determine whether the landlord-owner was subject to potential liability.
To help resolve medical malpractice matters, I instituted a novel program for lawyers and doctors called The Physicians & Attorneys Cooperative Education (“PACE”) Program, designed to facilitate a better understanding of the complex legal and medical issues involved in such cases. In addition, I supplemented my education further by taking medical school classes at John Hopkins University and business classes at The Ohio State University, and became a Fellow in the Advanced Science & Technology Adjudication Resource (“ASTAR”) Program, all while maintaining an active docket.
Upon being assigned to the NYS Supreme Court’s Commercial Division in 2011, I took steps to flatten any learning curve by diving into complex, commercial matters and engaging with experienced attorneys who were subject matter experts in various aspects commercial law. Cases ranged from the low six figures to tens of millions of dollars and involved conventional issues (e.g., stock and business valuations; employer/employee issues) as well as more esoteric matters (e.g., stolen art claims). Understanding the facts and legal arguments, and the concerns, objectives and goals of the parties’ attorneys, were critical to my success as a judge.
The importance of being completely prepared applies equally within the context of alternative dispute resolution. The mediator or arbitrator must do her/his homework, thoroughly review all submissions, understand the concerns, objective and goals of the parties and their attorneys, and be intimately familiar with all material aspects of the case. One word of caution: the neutral should refrain from taking short cuts – e.g., waiting until the last minute before the hearing to review the parties’ submissions, or otherwise engaging in conduct that can interfere with her/his obligations and responsibilities as an ADR practitioner.
As a private mediator and arbitrator, I approach ADR with the same level of commitment and dedication that I demonstrated on the bench. I analyze the information attorneys send, especially since I know they have taken the time to ensure their statements and proof are effectively advanced in their submissions. It is my duty to make sure I have thoroughly reviewed the materials sent, so attorneys and their clients know they are getting experience, fairness and value from a seasoned ADR practitioner.
~ Hon. Matthew Rosenbaum (ret.), is a retired NYS Supreme Court Justice, founder of Rosenbaum Mediations, PLLC, and an incoming member of the American Arbitration Association (AAA). He has resolved thousands of cases, both small and highly complex. For more information, go to www.RosenbaumMediations.com.
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