Navigating Virtual Arbitration and Mediation with Judge Sandra Mazer Moss (Ret.) of The Dispute Resolution Institute
This episode was recorded on July 8, 2020. One of the things I want to talk about today is what it means to be a neutral, an arbitrator, and a mediator post COVID-19. We’re instilled in the midst of a pandemic, but let’s talk about what the industry looks like, how it has changed, and tips for our audience.
More About Judge Moss
Judge Moss joined the DRI in 2014, after a long and distinguished career with the First Judicial District of Philadelphia Civil Trial Division. While there, Judge Moss served as trial judge, judicial team leader, and most notably was the founder and first supervising judge of the Complex Litigation Center. Fondly referred to as the CJC, Judge Moss stewarded groundbreaking litigation programs designed to swiftly and fairly resolve asbestos, lead paint, breast implants, and other mass tort cases.
Many of the protocols that she created have been adopted throughout the United States. They’ve also been the basis of her appointment as Chair of the State Judges Mass Tort Litigation Committee, where she served under the auspices of the Conference of Chief Justices. Judge Moss’s weighty accomplishments have been recognized by local and national organizations such as the Philadelphia Bar Association, where she received the William J. Brennan Distinguished Jurist Award. She’s a graduate of the Beasley School of Law at Temple University and was given the alumni association’s inaugural Women’s Champion Award. She has also been a president of their Inn of Court.
You’re now with the Dispute Resolution Institute. Could you please tell us about what you do there?
The Legal Intelligencer asked me to write a column for them, and I’ve done that for years. Now, I do it for LinkedIn, and the Philly Lawyer has picked some of them up. “I’ve reinvented myself” – That’s the topic. When The Legal Intelligencer called me, I thought they were going to ask me to use my vast quote-unquote knowledge of things. What they wanted was for me to talk about reinventing yourself after retirement.
I’m a mediator and an arbitrator, but I do other things too like consulting. People come to me and say, “I have this wonderful case, except for this one thing. Can you help us build a strategy to deal with this?” It’s tremendously creative because I can look at the entire case, and I can see things that other people sometimes don’t.
There was a case where a college student was injured badly. There’s certain things that she had taken. However, she graduated, and the plaintiffs were concerned because she was not in the career she wanted to be in. They were concerned that the defense would say, “Well, you graduated. You now have a degree, and you’re doing something else and the case isn’t worth very much.” I said, “Well, her father was in a career that she admired, and she built her dreams over following him into this career. After what happened to her, she was not able to. How much was that worth? She’s doing something else. That’s not what she wanted to do. Through no fault of her own, she was injured. They had not looked at the case that way.
When it was presented to the defense, they realized right away with what the plaintiff was saying. The case settled for a lot more than they thought it would. I do that kind of consulting. I’ve been an expert witness, which was a real experience, and legal malpractice cases and wrongful use of civil proceedings. I’ve actually testified in court. In fact, I testified in a courtroom, not the courtroom I sat in for years, but one that I sat in while my courtroom was being renovated at one time. My big fear was that they would ask me a question, and the other side would say “Objection,” and I would rule. It was very disconcerting, but my side won the case, and that was fun too.
Gina Rubel: Did you know the judge personally?
Judge Sandra Mazer Moss (Ret.): I knew the judge very well. The other side did not want me to be called judge, which was fine with me, but it was not fine with the lawyer I was working with because he said, “How can I put her credentials on if I can’t say what she did for 30 years of her life?” The judge thought about it and said, “I’ll tell you what. I won’t let either side put their credentials in. I will just charge the jury, but the two experts are qualified in their fields, and they’re practicing lawyers.” That satisfied everybody. It might have had a little problem in appellate review, but thank goodness that wasn’t me.
The end result was that we got to find through direct, but on cross examination, within the first three minutes. The opposition who had objected to calling me Judge Moss said, “Well, Judge Moss,” and there was a big silence in the courtroom. I said, “There’s only one judge in this courtroom, and she’s sitting on the bench.” The jury, of course, knew I was a judge from that. That was cool. But that’s what I do. We say it’s a plethora of things, but mediating and arbitrating are what I spent most of my time on.
Gina Rubel: To me, mediating and arbitrating means helping parties come to a fair resolution.
Judge Sandra Mazer Moss (Ret.): Yes. I have a real goal, and I seem to always have to make things right. To me, a fair resolution of any case is a lot better than a verdict. There’s a winner and a loser. I try to make everybody feel that they’ve won something. Maybe not everything they wanted, but the plaintiff walks out feeling compensated. The defendant walks out feeling that they have paid a fair amount for the case. Most of what I do of course involves money. It’s a matter of listening and trying to put yourself in the other person’s shoes. I think to be an effective mediator, and to be an effective judge, I learned that you’ll have to walk in the other person’s shoes. You have to think to yourself, what does a loss mean? What did the loss of warning to have a certain profession mean to the young woman who did graduate from college, but couldn’t be what she had planned to be?
It’s also to understand that from the perspective of both a plaintiff and a defendant, cases go beyond your money. If you get a medical malpractice case, and the plaintiff feels affronted that they believed in their doctor or their hospital, how do you pay them back if they lost a leg, or if they were hurt from a failure to diagnose. On the other hand, the defendant may have felt that they did the very best that they could. Maybe they saved the person’s life, and now the person is turning around and suing them. Maybe the company that made the product worked as hard as they could to have all kinds of safety precautions, and now they’re getting nitpicked. You have to look at both of those sides, and you have to let people understand that you feel for them. That it’s not just about money. It may come down to that, but that you understand it’s more than that. I think that resonates with the parties. It builds trust and understanding. I think that’s really important when you’re, when you’re mediating.
Gina Rubel: When I was talking about all of your awards over the years and all of the recognitions, one thing that I loved was when you retired, and all of your law clerks that were available came together. We honored you at a lunch. It goes to show how much you have done for people, how much you have taught, how much you have mentored. I continue to do that. That hasn’t been forgotten. I’m still friends with a lot of the people that we worked with, and I keep in touch with them. You treated everyone with absolute fairness and empathy, and you also never took any crap either.
Judge Sandra Mazer Moss (Ret.): I had a really hard time as a young lawyer, and I never forgot that I’ve always been committed to women’s issues. I had a hard time as a law student. I was a night student. I was a single parent, and I was divorced. I was on food stamps. I was very active in attempting to get the passage of the ERA. I’m still now active in trying to get the passage of the ERA. It disappoints me that this long time has passed, and it’s still not a reality, but I’ve always been committed.
In fact, I watched today, and this month the Philly Lawyer came out with an article that they’ve reprinted from something that I had written. I added and updated it. The piece was called “Women Leaders Wanted.” It talks about the percentages from a couple of years ago on a study that I worked on. The study showed the discreet patented discrepancy between male partners, female partners, equity partners, and people in charge of different departments. It showed how unequal that is. To me, it’s become a mission to try and see changes and effectuate them in the small way that I can. Now, I have my First Amendment rights back. I can talk a lot more.
Can you please explain what you mean by that to people who have never been in a judicial role?
A judge not only has to be a neutral, but we are not allowed to express opinions of things. It makes some sense. If I told you how I felt on every issue, you won’t feel comfortable coming into my courtroom. It’s difficult. I was never allowed to sign a petition for someone who was running for office or for an issue that I was interested in. I’m on the Board of Governors of the Philadelphia Bar Association now, and I’ve come out one way or another on certain issues. I was asked at one point on an issue to testify in front of city council. I never could have done something like that. Now I’m still in neutral. I still hesitate to express opinions on certain kinds of litigation because when you come to me to mediate or arbitrate, you want to make sure that I’m going to look at everything with an open mind. There were a lot of times on the bench, and a lot of times now, that I rule in a way I wish I didn’t have to, but that’s what the law says. If I’m arbitrating a case, I’m going to decide it the appropriate way, whether I’m happy with the decision or whether I’m not.
I feel like I’m reinventing myself now, given the COVID-19 pandemic, because so much of what I do now is virtual. I’m doing many more arbitrations now than I did before. If you add up what I did over a year, I did more mediations than I did arbitrations. I can tell you within the last three weeks, I think I have scheduled at least five arbitrations between August and September. I think the reason is that the court system is pretty well stalled. They’re trying, I sit on a lot of committees.
I find that if my court needs a lawyer on a committee, I very often get asked since I can wear the lawyer hat. I could also understand the judge’s perspectives. It would certainly be quite a challenge if I was sitting on the bench now, running a discovery court virtually or getting cases resolved. I think what’s happening is that people are now thinking of alternatives. Of course, one of them is arbitration. I imagine that most of these arbitrations have high lows, and explaining that to people who that said the parties have talked and have decided privately, that $10 might be the high, and $1 might be the low. This meant if I gave a verdict of $12, the plaintiff would only get $10. If the low was a $1 or $2, and I found zero, they would still get the $1 or $2.
That gives everybody a little bit of confidence because you can’t appeal an arbitration. I find it’s a grave responsibility because I know that it’s not just that they decided to arbitrate. The case might be a small case, and it’s expensive to bring a case into a courtroom. Now, I know a lot of times they’re doing it because they need to have the trial done. Perhaps, the plaintiff is older. Perhaps, the company is in financial distress, and everyone’s concerned. Justice delayed really is justice denied. It’s become a much stronger responsibility to me. I see my role as being very serious now. Not that it ever was not serious, but now I know that there are people that are coming into a courtroom because this is the best that they can do.
Gina Rubel: You’re not only keeping businesses alive, but you’re keeping the system moving forward. It’s fascinating how things come full circle.
Judge Sandra Mazer Moss (Ret.): I’ve thought a lot about that because I also got put in a subcommittee that was looking for options, to the jury trial, until we can come back to a jury trial. After all, what juror’s going to come down to city hall now to sit with a hundred masked strangers? It’s almost impossible. How do you put a trial along with everybody wearing masks? If you don’t wear masks, God knows what would happen medically. You have to look for alternatives. I started thinking outside the box, and we came up with some ideas of trials, perhaps, with one judge and two experienced lawyers, like in a tribunal. We had judicial evaluation panels of cases, giving them summary trials of people, summarizing their evidence in a panel, and giving them an educated idea of what would happen.
We did present the court with several alternatives, while the judge, who is the supervising judge of the civil division, is presenting to the other civil judges, and they’ll see what they come up with. It did remind me of that because when we changed the way the asbestos cases were done, it was shooting from the hip and trying things that you hoped would pass appellate review. 40 years later, it seems like I’m back where I started from, trying to figure out how to get us out of this quagmire.
Gina Rubel: It’s fabulous because as lawyers, we tend to rely on precedent, and there’s no precedent for this pandemic. Yet, we’re looking to what we’ve learned in history.
Judge Sandra Mazer Moss (Ret.): Exactly. Even with Zoom mediations, there’s a whole different way of handling things. I talked in the beginning about feeling empathy for the parties. How do you show that on the screen? I did a lot of thinking very quickly in March and the beginning of April, because I had several cases that said, “We don’t want to be continued. Do you think we could try doing it on screen?” It was their gain, and I was going to gain too.
What are some of the things you’ve learned?
I learned that you can get across to other people through empathy and caring, and find a way out of a complex situation still saving face. There was one person that was extremely upset. She was talking, and I found myself involuntarily reaching out and touching her arm on the screen.
She saw me do it. I’ve only reached forward, but she realized what I was doing. You could tell by her eyes that she felt that I understood. It wasn’t as good as actually doing it, but she got the picture.
Gina Rubel: If you’re before a tribunal, are the attorneys still going to say, “May it please the court?” Are they going to still stand up? Are they going to dress properly?
When I say properly, there’s a decorum and a level of respect that we give that tribunal for a reason, not just tradition, but because it’s a formal proceeding. I’m curious to see how it’s going to change over time. I think because I’m a third-generation attorney, as my grandfather was a judge and my dad was a lawyer, there’s something about the formality of the tribunal that I hold as sacrosanct. Yet, I still find that you can be formal in a video call by being respectful and mindful of boundaries, while still honoring the system.
Judge Sandra Mazer Moss (Ret.): I would hope that whether the lawyers were appearing in front of three judges that were deciding their case, or a sitting judge, or a retired judge, that they would use the same respect and decorum because that’s with the court, with a capital C. I used to say that to lawyers. You may not like me, but you need to respect the robe. You need to respect the office because it’s not about me. It’s about the courts. It’s about the justice system. When Shakespeare said, “First thing we’ll do is kill all the lawyers,” that was said as someone who wanted to create anarchy. That was the whole point. If there were no lawyers there, there wasn’t going to be law. Sometimes, it’s used for other purposes. Actually, it was a compliment to the legal profession.
We did our first Zoom arbitration and yesterday, we had a phone call to kind of work out the things that I would need. Although I’ve done a whole lot of mediations, this is going to be the first of many arbitrations. You had to begin working within the medium that you have. If that’s the only way you can do it, it’s a lot better. What good is justice a year or two after you’ve died? Maybe in justice of a Zoom, arbitration would be better while you’re still alive. You could still tell your story, or while your company is still solvent. I worry very much about the companies that aren’t coming back that were closed like the restaurants and other stores. I’m sure some of the larger companies aren’t getting their products out because of the lack of people and the lack of people buying.
Gina Rubel: Every industry has been hit. I live outside of Philadelphia on a farm. We have friends who are in agricultural and farming businesses, and they can’t get talent to come and work because they’re actually making more on unemployment. Their crops were going bad.
Have you put any processes in place to communicate during Zoom?
Gina Rubel: The reason I’m asking is that two weeks ago, I listened to a judge from New Jersey who talked about how he’s handling matters. He created little note cards or flashcards. One card might say, “Speak up,” and one might say, “Take a pause.” The cards would have phrases that you might have to say while people are speaking to get their attention without interrupting them. I thought that was brilliant. He said it’s working very well in the matters that he’s handling on Zoom.
Judge Sandra Mazer Moss (Ret.): I’ve never thought of using cards. I do a conference call with the attorneys before any Zoom mediation or arbitration that I’ve done. First of all, I need to know how many people they’re bringing, whether the people who will be in their office or in their separate homes, and how many Zoom rooms I need. What you do, even though it’s a flat screen and you’re on Zoom, you create virtual breakout rooms so that an attorney and a client can actually talk privately. The others can’t hear them, even though their faces may all be on the screen. I’d be able to zoom in and talk to you privately. Nobody would be able to hear what I would be saying to you.
There’s a technician, and I’ll say, “I want to zoom in to Gina Rubel’s room. I’d like to now zoom into John Jones’ room. Can you please take his client out so I can speak to him privately?” People will get zoomed in and zoomed out. You might have two people on screen, and then one of them will disappear because they got put in a different room.
Who’s doing that for you? Is that a technician hired by DRI?
I’ve had technicians hired by DRI, but my husband is really learning how to deal with it. He’s the technical person involved in a whole lot of things that I do. I got an upgraded laptop, partly because it allows me to create breakout rooms. I think you do need a technical person to work with you. If I’m concentrating on how I’m going to mediate a case, figuring out what I have to do, who I need to talk to, and what I need to say, it would distract me if I have to also figure out which Zoom room I want to zoom into. When I do it, I say to my husband, “I want to zoom into Gina Rubel’s room,” and then he’ll zoom me in. I know there are some mediators that are technologically savvy enough that they just like to do it themselves, but I like to know there’s somebody there.
Do you have the court reporter on as well?
No. If, for some reason, I needed a court reporter and a mediation, you would never have one because everything is so confidential. But in an arbitration, it may not be. Then, the court reporter would be online with everybody else taking down all of the testimony.
Are you visually recording the whole arbitration? Would you have a record of it anyway?
I don’t record anything. Again, I’m starting my first arbitration, but I’ve never recorded an arbitration that I’ve done in person. I think there’s only been one arbitration that I ever did that wanted a record. I think part of that was because they were testing out their experts for other cases, and I think they wanted a record of them testifying so they would have it. Of course, they’re entitled to do, but mostly nobody wants a record. The same questions I get are: How do we show documents? Even in a mediation, I may want to wave a document at you. Let’s say there’s a police report where somebody testified that the light was red, and you’re the defendant, and you insist it’s green. I was asked, “What if we want to show you the police report?” In an arbitration, it’s really important, but there are virtual ways of doing that. You can show documents like on PowerPoint that would actually come up on the screen. There would just be the document, and I would be able to look at it.
Gina Rubel: The attorney then can share their screen with everyone in the arbitration, and who would have it pre-prepared in a way that would be easy to show the document or the evidence.
Judge Sandra Mazer Moss (Ret.): Exactly. When I do my mediation next week, it’s on a medical case, so I have a plethora of records. Obviously, they’re only going to pick and choose what they use. When they do, they’ll put them up on the screen, so I’ll be able to find that particular one because they’ll have it marked. I’ll be able to have my hard copy and be able to mark it, so I have a record, because I’m not going to decide the case the second it’s done. I want to be able to go back and look at the exhibits.
In a normal, in-person arbitration, they will have copies for me and copies for each other. I would be keeping the copies and marking mine. When I go the next day to sit down and decide it, I’d have all the exhibits. I will have the same thing this time, but there’ll be showing me virtually. They’ll say, I want P1, which is marked exhibit defense 17. I can go to their binder and get out defense 17, and that’s going to be D4, for example. Everything is doable.
I think the whole key to any mediation or arbitration, whether it’s virtual or not, is preparation. You have to prepare differently and coordinate more, as far as giving the binders with things, they should be more carefully anyhow. But, I could deal with it, if we’re all sitting around the table, because you could show me what it is, and I can find it. But, virtually it becomes more difficult. So it’s a matter of preparing more carefully. And tomorrow, I’m going to my office to pick up two huge packets of materials to start reviewing.
They’ve been very careful in organizing them, so that it would be very easy during the arbitration for me to find things. When you’re doing something virtually, you have to be very careful knowing that things are going to be on the screen. You have to be sure that you’ve got good, clear copies. You can’t just hand it to me thinking I can pick up a magnifying glass and figure out what that thing is.
You need to use highlighters. When you show me something, I can figure it out and find it on my copy. You have to prepare your clients because it’s still different on screen. Sometimes, you’re preparing them on screen. I’ve had meetings in my mediations, I’ve rarely had the client and the lawyer, or the adjuster and the lawyer in the same place.
I think what’s going to happen is that there’s going to be some things that have value that will stay. I think there will be virtual mediations even after we may not need them. I think they’re quicker. I don’t think I’ve done a virtual mediation that was more than three hours long. Regular mediations could go seven or eight hours.
Online, everybody’s anxious to jump right in. It’s hard to take a lunch break, although we have by simply going offline for a half hour so everybody can chill out. What I find is that people really want to get right into it and do it. It’s also cheaper than going somewhere because it’s quicker, and it’s easier to schedule because you don’t have to worry about travel time.
Judge Moss, I’m thrilled that you could join me today. I’m sure our listeners have learned a lot, especially those who might be coming before you. Where can people learn more about you or get in touch?
They can reach me by email. I have two emails and they can reach by each one. It’s firstname.lastname@example.org, or email@example.com. They can also reach me on LinkedIn. I have a LinkedIn page and a Facebook page. I put an article out every single month. This one that I just sent for publication is about the alternatives to jury trials, but I’ve also written what I called the reality of the virtual about virtual mediations and arbitrations. I’ve written a lot about the situation in the country about equal justice, hate, and also about women’s rights. They can reach me on LinkedIn. If they’re bar association members, please read my article in the Philly Magazine, summer edition, because it’s looking for women leaders. I’m hoping that those who are looking will consider women.
We’ve been talking with Judge Sandra Mazer Moss, distinguished neutral at DRI.
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