Faith Hochberg served as a federal judge, a United States District Judge for the District of New Jersey, for 15 years. She also sat by invitation on the Federal Circuit Court of Appeals. When she looks back, she is most proud of her opinions on important issues in life sciences and technology patents, as well as complex corporate and financial services cases. She also takes personal pride in completing 6 MDL (Multi-district Litigation) cases, in which scores or hundreds of individual cases are transferred to an experienced federal judge to handle.
New Jersey is one of the 5 federal judicial districts with the highest number of IP, Life Sciences, Pharmaceutical, and Technology cases, an expertise and ranking it shares with Delaware, California, and Texas.
Equally challenging were the complex contract disputes in financial services, mergers & acquisitions, and securities. These cases were often filed in New Jersey, where the corporate offices of major banking institutions are located, and the contracts generally had choice of law clauses calling for the application of New York or Delaware law. She therefore developed expertise in these states’ laws, as well as many others. We asked her how her expertise informs her approach on the American Arbitration Association® Judicial Panel.
Q. What motivated you to transition from the bench to arbitration and/or mediation work, and how did you become connected with the AAA?
What motivated you to transition from the bench to arbitration and/or mediation work, and how did you become connected with the AAA? I left the bench in 2015 and founded Hochberg ADR, to serve as a full-time Neutral: Arbitrator, Mediator, Special Master, Mock Court Judge, and Monitor. Working with parties and counsel to decide cases, and well as settle them, was something that I loved teaching my law clerks how to approach, and it was a natural transition. My goal when I graduated from law school was to have as many “careers” within the law as I could fit into my life! So, these past 11 years have been among the most enjoyable of my long career. This community that we call ADR has an exceptionally collegial group of neutrals who bring so many talents to this work. I learn from my colleagues every day.
Q. What do you value most about serving as a neutral with the AAA?
What do you value most about serving as a neutral with the AAA? I value the diversity of the work, the skill of the case managers, and the chance to work as a co-equal team with other arbitrators, whether I serve as a wing or as a chair. The complex commercial cases and international ICDR cases are uniquely interesting and challenging.
Q. How has your experience as a judge shaped your approach to ADR proceedings?
How has your experience as a judge shaped your approach to ADR proceedings? As a judge, I was known for running a very organized courtroom, with a docket that was on time, even in complex cases. All counsel appreciated this, and this experience has shaped my approach to management of ADR proceedings. I also keep firmly in mind that being an Arbitrator is a different job than being a judge in the public sector; arbitration requires even greater awareness of time, cost, and confidentiality considerations.
Q. How do you approach case management in arbitration or mediation, and what strategies do you use to keep the process fair, efficient, and focused?
How do you approach case management in arbitration or mediaBon, and what strategies do you use to keep the process fair, efficient, and focused? Case management is at the core of keeping arbitration efficient and cost-effective. When I serve as Chair, I send out a comprehensive agenda even before the opening case management conference. I have refined it over the years to elicit potential case management issues as early as possible, so that a firm calendar can be set early. My approach to information exchange disputes is focused, fair, and prompt; everyone knows how to bring issues to the attention of the Tribunal from the outset. I often use charts as an expeditious way to see disputed positions side-by-side, supplemented by concise letter briefs. I handle Hearing Exhibits with the same eye toward focus and efficiency. This has become very important as the volume of documentary exhibits has grown enormously in recent years.
Q. What advice would you give to advocates or parties preparing for arbitration or mediation?
What advice would you give to advocates or parties preparing for arbitration or mediation? Preparation is the key to success: focus on both the good and the challenging evidence, so that you know the hurdles your case puts in front of you before your witnesses take the stand at the Final Evidentiary Hearing. And be sure that your fact evidence establishes the facts that your experts rely upon in their opinion testimony. In mediation, try to consciously overcome the natural tendency of great counsel to believe in their case so strongly that they develop confirmation bias. Consider having a partner give you an unbiased view of your case well in advance of the mediation.
I offer counsel in my mediations the opportunity to send me a “Mediator’s Eyes Only” letter in advance to tell me in confidence their ideas for potential settlement outcomes, their willingness to compromise, and facts or history of the case that could raise hackles if put into a Mediation Statement sent to the other side. While Mediation Statements are still exchanged, both parties can also use this “MEO” letter to tell me other things they think I should know in order to settle the case.
Q. Which skills or qualities do you believe are most essential for a successful neutral, and how have you cultivated them?
Which skills or qualities do you believe are most essential for a successful neutral, and how have you cultivated them? All Arbitrators need to learn to always keep an open mind until all of the evidence is in. This is one area where former judges often have a head start. And it goes without saying that all parties deserve a respectful hearing, where each side can fully present its case fairly. Making sure that the playing field is level for all parties and all counsel is absolutely fundamental to a fair process.
It is also important for arbitrators to learn to listen to their colleagues, who bring their own skills and experiences to the table. I try to work with a wide range of colleagues, including those I may meet for the first time at the initial case management conference: They may have expertise that I hadn’t even thought of in advance.