As a former consumer of the services of mediators and arbitrators while leading the litigation practice at KPMG LLP, I can appreciate that attorneys and clients are interested in knowing what they can about the philosophy of the neutrals they consider selecting to help resolve their legal disputes. To be informative, I offer the following thoughts on how I define the proper role when I act as mediator or as arbitrator and my approach to executing each of those roles. The statements below are necessarily limited by space and are general in nature, but I encourage you to follow the link to the relevant video in which I describe my views and approaches to mediation and arbitration in greater detail.
As an in-house litigation manager, my imperative was to reduce litigation costs by controlling the cost of defending claims, resolving those claims quickly and efficiently and for the lowest possible amount in a forum that provided greater party autonomy and more predictable outcomes. The defense of professional malpractice claims is costly, both in terms of the attorney and expert time it took to evaluate and defend the highly technical audit, accounting or tax issues presented and professional judgments made and in terms of the disruption to the firm’s ongoing business caused when professional service providers are distracted by the demands of the litigation system. And those costs were not necessarily proportional to the amount at risk – it takes just as much time, effort and cost to defend the $3 million audit malpractice claim as it takes to defend the $200 million audit malpractice claim.
It is my firm belief that through early and aggressive investigation of the facts of each case and critical assessment of the legal, business and financial risk posed by those claims, litigation risk and costs can be reduced through effective use of early mediation and, where agreement can’t be reached, by arbitration which, when properly managed, can offer a more efficient and proportional process to resolve the parties’ claims in a shorter period of time. By adopting practices and protocols converting this belief into action, over ten years we reduced our litigation costs (settlements, judgments, insurance and fees) by more than forty percent.
In my opinion, the key to success at mediation is preparation – by the mediator, the parties and by counsel. I design my mediation process to encourage each party to undertake the kind of meaningful preparation necessary to gain an objective and clear understanding of, and critically analyze, the litigation risks and costs they face and potential solutions. I then meet privately with each party and dive deeper into those issues and explore issues defining possible resolutions. In the joint mediation session(s), I facilitate negotiations, but when necessary or appropriate I can draw on my extensive trial experience to break through parties’ preconceptions and help them evaluate their litigation risk and use various techniques to help the parties find a mutually-acceptable solution.
More detailed information on my approach can be found in the video below.
As a litigator I wanted an arbitration process that was focused and efficient, allowing information exchange or discovery providing access to evidence directly relevant to the claims and defenses and proportional to the claim in issue, and I wanted an arbitrator that would keep the process focused and who moved the case efficiently to hearing and award. As an arbitrator, that is my philosophy and approach. You can learn more about my arbitration philosophy in the video below.
Recent Speaking Engagements
Panelist, “Ethics for Neutrals: Recognizing the Ethic Issues that Might Slip Under Your Nose” presented by the NYSBA, Dispute Resolution Section Ethics Committee, December 2024
Panelist, “Mediating Professional Liability Cases – from the Mediator’s Point of View” presented by the ABA Litigation Section Professional Liability Litigation Section, October 2024
Panelist, “Arbitration War Stories Roundtable: Cautionary Tales from Panel, Counsel and Client Perspectives” presented by the New York State Bar Association, Dispute Resolution Section and Domestic Arbitration Committee, December 2023
Panelist, “Ethics for Neutrals: Recognizing the Ethic Issues that Might Slip Under Your Nose – Part 2” presented by the NYSBA, Dispute Resolution Section Ethics Committee, March 2025
Panelist, “Mediating Professional Liability Cases – from the Mediator’s Point of View” presented by the ABA Litigation Section Professional Liability Litigation Section, October 2024. ABA Members can view the presentation below.
Donald Rose Dispute Resolution 