Hartford Business Journal Special Editions

HARTFORDBUSINESS.COM | FEBRUARY 5, 2024 B3 BEST PERSONAL INJURY FIRMS Mediation, arbitration offer path to settlement outside of court By Paula Wolf Contributing writer M any Connecticut business owners may feel that the civil justice system is biased against them. But former judges who work as mediators say that mediation – officially known as alternative dispute resolution – is emerging as a money and time-saving answer in more and more cases. Judge Michael Riley, who retired from the bench after 14 years on the Connecticut Superior Court, is a member of the alternative dispute resolution practice at Pullman & Comley LLC. While on the bench, he served as the administrative judge and as presiding judge for civil matters in the Judicial District of Windham and most recently as a mediation judge in the Hartford Judicial District Mediation Center. Businesses "feel whipsawed" by plaintiff awards and consider the situation far from a level playing field, he said. It's the "nuclear" verdicts in Connecticut that get their attention, some of which result in awards of millions of dollars, Riley said. Nonetheless, Riley said medi- ation is increasingly becoming the "go to" process after a lawsuit is filed. Negotiations follow, with the goal of producing a settle- ment acceptable to both parties. He said he averages five cases a week. "When I came up, there was little of that." Breaking the logjam Riley said he has mediated more than 1,200 cases, with a 95% success rate, meaning a settle- ment was reached before the case went to trial. e vast majority of cases have been in state court. As a mediator, Riley described himself as being "as middle of the road as you can be." But if one of the parties is being unrealistic, for example, he may say something. e defendant also needs to understand the civil justice climate in the state. Juries are more inclined to award in certain types of cases. "Truck drivers get clobbered here," Riley said. Even if mediation doesn't produce a settlement on the first day, which is about 50% of the time, it may start the process by breaking a logjam, he said. "ey may pay a little more out of their comfort zone" to settle, Riley said. But it's even costlier to go to trial. Judge Robert Holzberg, retired from Connecticut Superior Court after 22 years, leads the alternative dispute resolution practice at Pullman & Comley, which consists of four retired judges and six AAA-certified attorney arbitrators. He has extensive experience as a mediator and arbitrator in compli- cated civil matters in state and federal court, including personal injury, employment, construction, environmental, probate, insur- ance, intellectual property and commercial disputes. Holzberg has earned a reputation for his skill in crafting settlements in some of Connecticut's highest-profile and most complex cases, his online bio said, and is one of the state's most sought-after mediators by local and national counsel. He is widely regarded as creative and persistent in devising practical solutions to difficult legal problems, and is respected for his ability to estab- lish relationships of trust with counsel and their clients. "e area we work in is indeed geared to reduce anxiety," Holzberg said, as the aim of the parties, assisted by the medi- ator, is to come up with a fair, economic resolution. It's an efficient system that can lead to an outcome good for both parties, he said. By keeping a case in mediation – and removing it from the court- room – parties can also preserve privacy and confidentiality. And it saves money in the long run by avoiding protracted litigation, Holzberg said. What's the difference? Although they share a goal of avoiding a costly court battle, mediation and arbitration are two different processes. Media- tion involves a process that leads to settlement, while in arbitra- tion a private trial arbitrator makes a ruling. ere are many more media- tions than arbitrations, Holzberg said, although both sections of the alternative dispute resolution practice at the firm are busy. "Very few cases end up in court," Holzberg said, "as 95-98% ultimately settle before trial." Retired Justice Peter Zarella served as a judge on the Connecticut Appellate Court and Superior Court before being nomi- nated by then-Gov. John Rowland as an associate justice on the state Supreme Court in January 2001. He left the bench in 2016. While serving on the Supreme Court, Zarella authored over 300 majority opinions, in addition to numerous concurring and dissenting opinions, according to his online bio. ese included significant opinions in many areas of the law including product liability, class action, property rights, family law and constitutional law. Of counsel with McElroy, Deutsch, Mulvaney & Carpenter LP, Zarella practices alternative dispute resolution at the firm, among other areas. Since 2017, he has also been an adjunct professor of law at the University of Connecticut School of Law. "Courts should use all their energies to decide cases as expe- ditiously as possible," he said. "e job of a judge is to prepare for trial." Zarella said the downside to mediation is that it cuts off the legal process before case law can be made. "Common law changes over time through court decision," Zarella said, and mediation prevents that from happening. Judge Michael Riley Judge Robert Holzberg

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