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Mediations, Arbitrations, and Alternative Dispute Resolution

Katlyn Graham: Hello. I'm Katlyn Graham, here with Judge Paul Chernoff of Counsel at Brody, Hardoon, Perkins and Kesten. Welcome, Judge Chernoff.

Judge Paul Chernoff: Thank you. Good afternoon.

Katlyn: Good afternoon. Today, we are discussing mediation and arbitrations. I understand you do alternative dispute resolution work at the law firm. Does that mean you do mediation and arbitration, and how do they differ?

Judge Chernoff: Mediation is the resolution of a case where I serve as an individual who tries to bring parties together. As a mediator, I don't make any decisions. What I do is I help bring the parties together, add a little bit of reality testing to their cases, point out the strengths, point out the weaknesses, and try to get people closer and closer together to see if they can agree on a compromise resolution of the case.

I am essentially a facilitator. That's what a mediator is. They facilitate a settlement between the parties in the case.

An arbitrator actually makes a decision. If I'm retained as an arbitrator, I am asked to serve as a judge and to hear the arguments of the attorneys, to look at and to listen to the evidence in the case, and then to make a decision that covers whether or not somebody or some entity owes money to someone else or to another entity and if so, how much money.

It's essentially a trial where the parties have agreed that the arbitrator would be a substitute for a judge in the courtroom or a substitute for a judge and jury in a courtroom.

So that's mediation and arbitration. There are other devices that come within the rubric of ADR, or alternative dispute resolution mechanisms. But I've talked about mediation. I've talked about arbitration. If you like, I can talk about some of the others.

Katlyn: Sure.

Judge Chernoff: We have something that is known as conciliation, which is sort of a loose mediation. It's where a person is like a mediator in that they attempt to reach a resolution of the case, but they're called a conciliator because it's very local.

You talk about the particular judge the case is before, what's likely to happen at trial, what they ought to do. There's not a whole lot of confidentiality. There is confidentiality. But it's not like the secret private environs of a mediation.

It's a looser form, and the conciliator tries to get the parties to agree to a resolution. If they are, then you've successfully conciliated a case.

There's something that's called case evaluation. The neutral person comes in and assesses the strengths and the weaknesses of each party's case, and suggests to them what they have to lose and what they have to gain if they, in fact, go to a trial before a judge or a jury. That's really reality testing. The parties might then be able to better resolve the case.

Lastly, there's something that we call summary jury trials. I have been involved in a few of those. That's where the parties don't want to go to an arbitrator, because they don't want someone to make a decision for them. The parties have either tried mediation, or they think that they're just no way that they will agree on what to do. They don't trust a single individual to tell them what the case is worth.

What I would do in a case like that is to get, usually, six neutral people ‑‑ citizens in the community, to whom we pay a relatively small amount of money. Or we get actual jurors who are in a courtroom or a courthouse, who aren't being used for a jury that day. Just bring six people randomly into the room, and then each lawyer has an opportunity to describe the case to them.

Sometimes the lawyer will actually put the client on the witness stand and ask several questions of them, so that this group of six people can get a sense of what they're like. Then the judge, the mediator, or the person in that neutral position, like myself, would instruct this group of volunteer jurors just a little bit on what the law is in that area.

They're asked to go back and come back and give advice to the parties as to what they believe the case is worth. They come back, and it's amazing what a great sounding board they are. They'll come back with a number. Everyone has a number. This case is worth, for example, $25,000.

The lawyers and the parties can talk to these jurors, "What impressed you? What didn't impress you? Why do you think it's worth only $25,000?" or, "You mean $25,000? That much?" They get an explanation. Usually, that adds enough of a reality to the situation that the parties will then resolve the dispute.

Those are the kinds of things that we do in what we call the ADR field. I do mainly mediation and arbitration, although last year I conciliated a case with a number of lawyers. In serving as a neutral, I have not yet done a summary jury trial, although I did several of them when I was actually sitting fulltime on the bench.

Katlyn: Sounds like at this ADR, a lot of conversations that wouldn't happen in a courtroom with a judge and a jury are able to happen. Interesting. Brody, Hardoon, Perkins & Kesten is a litigation firm primarily. Do you think that undermines your ability to do mediation and arbitration work? Is that a problem?

Judge Chernoff: I don't believe it's a problem at all for me. It might be for some people and it might be at some law firms. Obviously, you have to be careful about who their clients are because they do some defense work, so they are working for some insurance companies on occasion. I have to make sure that I don't get involved in any mediation or arbitration work where there's an insurance company that is at all involved with the law firm.

To my mind, that's the only possible downside. Everything else is an upside. For example, the firm has plaintiff and defendant lawyers here, and they are a wonderful resource for me. We talk all the time about our cases, so I get a good sense from them about what's happening in the legal community as far as plaintiffs and defense cases are concerned.

I also can learn from them about mediators and the kinds of things that they do that might be novel ideas because they constantly bring cases to outside mediators for resolution. Then they come back and they tell me about a particular mediator who has a particular good idea about how to resolve a certain kind of case.

I've picked up a lot of ideas just working with the lawyers at Brody, Hardoon. I also, since I work in the court system as a judicial officer at least two days a week, have kept up my relationship with judges as a peer relationship and not as a relationship of lawyer and judge.

Being able to be a peer with all of these judges whom I work with and have worked with in the system gives me an opportunity to keep current with what's happening in the court system. How that helps me as a case evaluator or as a mediator or as an arbitrator is very important. That helps me.

Thirdly, along with working within Brody, Hardoon, I also work in the court system one day a week doing pro bono work which is volunteer work doing mediation, resolving their cases usually for people that can't afford a mediator. I have three lives that I live, and one of them is Brody, Hardoon Litigation Law Firm. That only adds to me as an individual, as a mediator and arbitrator.

Katlyn: You are certainly very connected with the law community. My goodness. What kind of training and experience do you bring to this ADR work?

Judge Chernoff: First of all, I bring the training that all mediators and arbitrators bring to this work. In Massachusetts, you are required to go through a program, it's a multi‑day program, where at the end of the program you receive a certification which then allows you to do this particular work.

I've had that kind of formal training. More importantly, working as a judge in the district court and in the superior court has been something that's really prepared me to do this kind of work. As a judge who presides over non‑jury trials, meaning without a jury, are cases where the judge sits and essentially does arbitration work.

When I sit as an arbitrator, I'm really doing what I've been doing for 38 years right now, and that is sitting on jury waived trials. As far as mediation is concerned, I, as a judge, would spend half of my time on civil work. In every single civil case, I tried to settle the case with the attorneys and the parties before the trial. Sometimes I was successful and sometimes I was not successful.

I learned an awful lot over the years as to how I can best facilitate a settlement in the case. It's certainly different when you're wearing a black robe than when you're wearing a gray suit in a conference room trying to settle the case. But it's the same dynamics.

Clearly a judge who wears a black robe is like somebody carrying a big stick. I'm really in a position, using my judicial experience, to try to help people resolve their problems. Also, as a judge, over the years I learned not only how to try to be fair and to be fair in a case, but I've learned how to look fair. How to not, in any way, disclose to any of the parties in the case that you may believe one person over another, or you have more sympathy one way than the other way. The job is to be a neutral.

I feel that that's been good training for me, also. Those are the things in my professional life I think have provided my training and experience for mediation and arbitration.

Katlyn: Certainly lots of experience. My goodness, 38 years worth of experience. Do you think you are a particularly effective arbitrator or mediator?

Judge Chernoff: I'm going to throw that question back at you, because I'm not sure that I'm the best judge of myself. It's hard to know. In the legal profession, there aren't many vehicles for being critiqued. A lawyer tries a case in court, and there's nobody there afterwards to say you did a good job or a bad job. You represent the client and you win or you lose.

In the mediation, you sit and you try to get the parties to settle the case. Almost all of my cases settle, but that doesn't mean that I'm a good mediator or I'm not a good mediator. I just do the best I can, and some cases settle and some cases don't. It would be the people who have been affected by my mediations who could comment on whether I'm an effective mediator.

Although, they say that a successful mediation is where everybody leaves a little happy and a little sad. They wanted more out of it and they got less, but they can get on with the rest of their lives. So, I put the question back on you. I do know that, in arbitrations, I've had so many years writing opinions and decisions as a judge, at least what I write is something that could be understood by the parties.

Katlyn: Definitely. What do you think sets you apart as a mediator and an arbitrator from others?

Judge Chernoff: I'd like to think that I'm more flexible than most people. I am willing to go anywhere, at any time, in any weather, and handle any dispute. Whether I'm successful in that endeavor in every single case may be another thing, but I am really willing to do that, to bend over backwards, to try to assist people reach a resolution in a case. I really will do anything.

I have, in the middle of snowstorms, told everybody to go home and we'll come back tomorrow, "I won't even charge you for tomorrow, but I don't want you on the road when it's snowing." In fact, we did that last year in a case. I think that's a certain flexibility that people really appreciate.

I also have a view of the role of the mediator that might be different than that of most mediators. Most mediators believe that the parties own the dispute, which means that you try your darnedest as a mediator to resolve the case. If you can't resolve it, and the parties won't resolve it, you as a mediator say, "Hey, that's your problem. You own the problem, not me."

This may be a weakness, rather than a strength, on my part. I can't do that. I really feel that, if they haven't resolved it, you haven't heard the last from me. We're going to talk on the phone, we're going to talk almost every day if we have to. We'll have conference calls. Not always, but usually I'll do it all on my own time. Sometimes we do come back, and then there may be further charges.

I would say, by and large, I just totally, totally invest myself to try to get that case to resolve, even though it looks like the parties are their own worst enemies. That is an area, where I think I differ from others. As I said, I'm certainly not better than others, but that's just my view about it, and it may be in the minority.

Lastly, I try to do something in every case, so that the parties think that they're special, that there's something special. In every single motor vehicle case, I go out on my own the week before to the scene of the accident. I walk around and I get the different sight lines. When we come in, the parties know that I cared enough about them that I went out to the scene and I did it.

I make sure that they know that I did it on my own time.

I also look for other kinds of special things. I bring in special snacks for the parties, so that nobody has to be hungry. If you have a little something to eat, you might be in a better frame of mind.

I'm reminded that, just a short time ago, I had a case involving Chinese people. I called a friend of mine, who happens to be a Chinese physician, and I said to her, "What do Chinese people snack on?" She said, "They snack on apples." In fact, the word in Mandarin Chinese for apple is peace.

When these people came in for the hearing here at Brody, Hardoon, we had fresh apples on the table. They even knew that I knew the word for peace in Chinese. I think that telegraphed to them that I cared. The case did resolve. I don't think it resolved because of the apples. But it's the kind of touch that I try to bring to my work here.

Katlyn: Definitely shows you care a lot. From all these cases you've dealt with, can you give us an example of how you get the parties to say yes?

Judge Chernoff: One of the ways, if you're successful, it to try to get parties to stand in the shoes of the other parties. Try to get them to recognize a strength that the other party has, or even a human connection that the other party brings to the dispute, so that it's not a warfare. In fact, it becomes a quest to understand.

A case that I can cite to you is a situation recently where there was a homeowner, whose property suffered terrible damage from an incident. The homeowner's insurance company said, "We're not going to pay any money at all," because when the homeowner took out insurance for the property the homeowner did not disclose a certain kind of risk, which is, in fact, what happened in the case and caused the property damage.

The insurance company said, "We're not paying you anything, because you withheld from us a risk or what the risk was. We might not have insured you, had we known about that risk. As a matter of fact, we see you as basically a fraud. You got a policy and you defrauded us by not telling us what the risk was."

The homeowner, on the other side, comes in and says, "If I'm such a fraud, why is it you continue to collect premiums from me? For a whole year while you were denying this claim, you were sending me bills, and I was paying them. If I'm such a fraud, why do you continue to accept my money? You're nothing but a greedy corporation."

That's what we started with, when we started the mediation. What I tried to do was to get the adjustor from the company to understand why it was that the homeowner didn't disclose the particular risk. There were human factors involved with it.

I tried to get the homeowner to understand, from the vantage point of the insurance company, that's there's a financial part of the company that sends out bills every month, which may not have much communication ‑‑ it should ‑‑ with the part of the company that is accepting or denying claims.

It wasn't so much of the company trying to shake down an insured. It was just how the company's finances or different departments are set up.

Just going back and forth, back and forth, the company began to understand why the homeowner, as a human being, did what he did. The homeowner, as a litigant, learned why it is that the company did what they did as far as billing was concerned, and that there was nothing personal involved in it.

We went on and on and they settled. When the people came in, they were so angry. I didn't think that a settlement was in the wind, but it worked. That was one way of getting the parties to yes.

Katlyn: Definitely that worked. There is an old saying that old judges never die, they just go to mediation. Do you think there's any truth to that?

Judge Chernoff: There is to some extent. Judges are required to retire at the age of 70. Clearly, at age 70, judges who are compelled to retire, who are not ready to retire, say that it's really unfair that there's automatic senility, which is presumed at age 70. It certainly is totally unfair.

Many judges will look for other things to do. Many judges don't want to start trying cases again, after age 70, so mediation is a good alternative ‑‑ or arbitration or other forms of ADR work. There are judges, and many of them do it on a part‑time basis. It's a good way of phasing from full‑time judicial work into total retirement, maybe a couple of years down the line.

For me, there's no truth in that, because I cannot be a non‑busy person. I just wouldn't be. My retirement, my fading away, is on Mondays. I still sit as a judicial officer on drug cases in Brockton. On Tuesdays, I also work for the court systems, sitting as a judicial officer on cases in Woburn in Middlesex County.

On Wednesday, that's my pro bono day, where I give to the system and I sit as a mediator for the superior court in Middlesex County. I try to resolve court cases. My time is donated time to this endeavor. I tried to have cases referred to me where at least one of the parties couldn't afford to pay a mediator who does this privately. That's Wednesdays.

Thursdays and Fridays, I do mediations and arbitrations at Brody, Hardoon, although I will do it on other days and I adjust my court schedule accordingly. Aside from doing that, I also teach trial practice at Boston College Law School, every Monday night in the fall and every Thursday night in the spring term.

I teach at MCLE, Mass Continuing Legal Education, many programs in the course of the year, in fact, with Lenny Kesten in this firm. He and I do a program on directed cross‑examination in the spring. In the summer, I do the trial advocacy program, which is called the Boot Camp program for lawyers, where we work form eight o'clock in the morning to six o'clock at night, for six days in a row, in trial advocacy.

I really do keep busy.

Katlyn: [laughs] Yes, certainly not part time.

Judge Chernoff: No, it's not for me. What I also try to do is keep in good physical shape. I live in Newton and I drive to Brody, Hardoon on my bicycle, as often as I can, which is about 12 miles each way. I run four to five days a week, and my hobby is memorizing poetry. It's hardly fading away, at least yet.

Katlyn: Not at all. You're still sharing and giving back to the community in a vibrant way.

Katlyn: Thank you so much for explaining that all to us, Judge Chernoff. I appreciate it.

Judge Chernoff: It's a pleasure to be here with you.

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