An In-depth & Highly Effective Mediator
What is Mediation?
What is Mediation? It is a non-binding resolution process. A neutral person facilitates negations between parties so that their dispute can be resolved amicably without the need for judicial interference. The litigants select the mediator. It saves money and emotional distress and, accelerating a resolution, brings finality and certainty. The settlement is memorialized and is then enforceable in court. The mediator caucuses with the parties in their separate conference rooms, or in break-out rooms on a virtual platform." All discussions with the mediator are confidential.
Sometimes parties enter mediation even before a complaint is filed in court. Sometimes mediation is required per the parties’ contract before the parties undertake arbitration.
When you mediate with Harriet Derman, you have the benefit of her experience as a retired Civil Judge, Probate Judge and Chancellor.
What is Arbitration?
What is Arbitration? It is a binding resolution process. The parties only arbitrate if they have agreed in a writing to do so or if in the course of the dispute, they decide to do so. Arbitration can be less expensive and achieve a prompt result in the context of confidentiality.
The arbitrator can be one person or a panel with a Chair. After reviewing the papers submitted, hearing testimony and arguments of counsel, and after reviewing the evidence, the arbitrator or arbitrators make a decision. The decision is binding upon the parties.
The mediation philosophy of Retired Judge Harriet Derman acknowledges that mediation is a successful tool in resolving disputes in an expeditious and expedited matter for all kinds of matters, whether “big” or “small" - so that the parties can arrive at a mutually agreeable resolution. Retired Judge Derman becomes in the words of Justice Brandeis, “Counsel for the Situation.”
Judge Derman believes that preparation is essential, and she works hard to understand the positions of all parties before the mediation even begins.
Judge Derman believes she can facilitate a resolution with the parties retaining their autonomy, by reaching a conclusion, which is practical and pragmatic under the circumstances. She stresses this autonomy to the parties, reminding them that the settlement is volitional. Judge Derman believes it is her responsibility to listen attentively to the interests which the parties assert and seek to vindicate while reminding them of the importance of a reasonable settlement. She strives to be sympathetic where appropriate and respectful of positions. Judge Derman encourages the parties to be candid with her, reminding them of the confidentiality involved in mediation, explaining that she respects at all costs the sanctity of the revelations disclosed to her.
Retired Judge Derman understands that if litigants lose trust in her, she shall be ineffectual. She understands that litigants, although mediating, want to have “a day in court” and they should be able to “vent” as much as they want and as much is reasonable. Judge Derman also strives to defuse difficult situations, and is sensitive to not communicating anything disclosed that might be incendiary and counter-productive. Judge Derman works at not being too assertive and to allow the parties to reach a compromise with which they are comfortable, but she understands that she can provide a realistic risk analysis. Judge Derman can also provide a “big picture” assessment of the matter and a "small picture", i.e. how their assigned trial judge might view the case.
Judge Derman understands that mediation is both physically and mentally challenging for all parties, including herself as she goes back and forth, tirelessly, caucusing with the parties. It is Judge Derman’s job to process the information received and to facilitate the negotiation by identifying the issues and exploring various options. Judge Derman also helps manage expectations, for both parties and counsel, and explains the limitations of demands, if appropriate. Judge Derman uses the benefit of her experience as a former judge and experienced mediator in a not heavy-handed manner.
It is Judge Derman’s job to keep communications open and active and to communicate positions with accuracy and clarity, avoiding miscommunications at all costs. She wants all parties to understand their adversaries’ positions.
Judge Derman works to compliment counsel to their clients, reminding the parties that they have effective advocates. Judge Derman must be a problem solver and manage the information given. She believes it is her responsibility to listen carefully to what she hears and to be observant as to what she sees.
A successful mediation involves legal and factual issues, as well as an understanding that cultural inclinations and personal and psychological preferences are implicated. Judge Derman is always impartial and works to convey empathy and firmness where required.
Judge Derman almost never gives up, and her experience supports this spirit of never quitting. She applies pressure with a “firm hand” or a “kid glove,” as she deems appropriate for the situation. Judge Derman has seen mediation after mediation that seemed doomed after several hours suddenly “reset” and the parties focus and the matters settle. Once a resolution is achieved, she assists the attorneys in reducing the settlement to writing. If a settlement is not reached, which is unusual, Harriet retains contact with counsel in the hope that positions soften, and a resolution can be achieved, and it frequently does.