REACHING A COMMON GROUND THROUGH ALTERNATIVE DISPUTE RESOLUTION

By Hon. Ben R. Barbato (Ret.) | February 2021

Over the course of my many years working both as a private practitioner, and as a court officer, law clerk, and as a trial judge, I have confronted the challenges of compromise.  Having presided over numerous settlement conferences, and conducting jury and non-jury trials, I have had the opportunity to explore avenues that lead adversaries away from confrontation and towards common ground and, eventually resolution. One cannot always be successful in achieving compromise, that reality, however, should not diminish our efforts to advance the settlement of a dispute through the reaching of common ground. 

The starting point of any dispute resolution process must always be understanding the bases for the controversy, that is, what brings the parties before us. What are the perceived liabilities and responsibilities of each of the parties and what are the possible arguments supporting or detracting from each party's approach to the dispute?  Equally as important; is understanding the expectations of each of the participants in resolving the matter.  Expectations, often a function of intangible facets of the human condition, such as emotions and external pressures, can run the spectrum of being “reasonable” to outside the realm of possibility.  Whether a participant's position is realistic or fanciful, in this writer's experience, is critical to the ultimate resolution of the controversy dividing the parties.  Having the experience to understand what motivates an individual to adopt a certain posture is an important step in moving in the direction of compromise.  It is, therefore, imperative for a neutral evaluator to allow the parties to express their positions without accepting or favoring either side.  The ability to close the gap between a party's expectations and a realistic settlement stems not only from the capacity to listen to the views of each side but also to apply relevant law to the facts of the case, while being able to understand and assess the “value” in litigation and other terms, of the dispute. Respectfully pointing out non-productive positions as well as offering alternative solutions allows the parties to reevaluate their situations and forego counterproductive posturing.   

It has been my experience that the success of a dispute resolution proceeding is often a factor of the participants' comfort in their reliance that the individual hearing a mediation or arbitration, or conducting a judicial settlement conference, possesses a degree of knowledge sufficient to render a fair and unbiased decision.  The parties should be assured that the outcome is based on relevant law and careful and thoughtful assessment of established pertinent facts.  Basing an opinion on weak and shifting legal or fact-based arguments serves only to disillusion the parties and diminish their expectations of obtaining a fair hearing. The ability and willingness to listen equally to each party before the rendering of a decision or suggesting a proposed settlement is indispensable in achieving a fair and appropriate outcome. The ability to remove one's pre-conceived opinions and perceptions is the hallmark of an impartial arbiter or trier of the facts. Perhaps the most difficult aspect of rendering a decision or negotiating the settlement is the ability to understand and to assign a value to a dispute.  This skill can only come about through real-world experience, that is, having conducted a number of settlement conferences, trials, arbitrations or mediations.     

Having conducted a significant number of successful settlement conferences, prior and during a trial, allows me to feel confident in my ability to render fair and unbiased opinions as well as possessing the skills necessary to find common ground to settle cases.  I have experienced first-hand how negotiations can be undermined by either over valuing or undervaluing a case.  Likewise, I have experienced how the advancement of one's personal opinions, or more clearly the predisposition of the individual conducting the proceeding has torpedoed many a settlement conference.

___________________________________________________________

Hon. Ben R. Barbato (Ret.) is a member of NAM'S (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the New York State.  Judge Barbato has presided over numerous jury trials and summary jury trials in personal injury, negligence and tort cases.  While sitting in the SJT part, he conducted more than 800 Summary Jury Trials in addition to pre-trial evidentiary hearings and settlement and charge conferences.  As a Trial Part Judge, he presided and conducted pre-trial discovery and settlement conferences and issued over 3,000 orders and decisions involving motor vehicle actions, trip and falls and slip and falls, premises liability foreclosures, mental hygiene hearings and construction/labor law matters. Judge Barbato also has experience handling family and matrimonial matters that include child custody and support, spousal support and maintenance and equitable distribution of marital property disputes. 

For any questions or comments, please contact Jacqueline Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.