Karen Green was an Associate Justice of the Massachusetts Superior Court from 2016 to 2022. She handled both criminal and civil cases. The civil cases included complex breach of contract, commercial real estate, healthcare, payor-provider, shareholder, breach of fiduciary duty, corporate control and governance, partnership, trade secret, insurance, intellectual property, employment, product liability, professional malpractice, class action, SLAPP, tort, and consumer fraud litigation in civil sessions in Suffolk, Middlesex, and Bristol Counties and in the Court’s Business Litigation Session, a forum dedicated to the timely and efficient resolution of commercial and other complex cases. The criminal cases charged serious felonies, including murder and rape.
She also felt a sense of accomplishment when the Massachusetts Supreme Judicial Court or the Appeals Court affirmed on appeal difficult decisions she had written and when counsel who had appeared before her provided positive written feedback on her judicial performance. 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?
For me, the transition from the bench to ADR represented a return to the work I most enjoyed in law school. The more than 35 years I spent litigating and resolving cases in federal and state courts as a federal prosecutor, private practitioner, and trial judge only confirmed my conclusion that, although a litigated adjudication is necessary in some cases, many can be resolved more quickly and effectively, at a lower cost, through ADR. Thus, after leaving the bench, I formed my own dispute resolution firm and applied to the AAA’s office in Boston for membership on its panel of commercial arbitrators. I now serve on that panel and on the AAA’s National Judicial Payor-Provider panel.
Q. What do you value most about serving as a neutral with the AAA?
I particularly value the AAA’s commitment to the cost-effective and timely resolution of disputes reflected in its training and continuing education of its panelists and its adoption of new technologies to assist them and its staff to accomplish its mission.
Q. How has your experience as a judge shaped your approach to ADR proceedings?
My judicial experience has informed my approach to arbitrations. I understand there are at least two sides to every dispute. As an arbitrator, my job is to give each party a fair and reasonably efficient opportunity to prepare and present its case and to listen carefully to the presentations of all parties before forming any opinion or rendering any decision. I also understand that there is nothing like a comprehensive, written scheduling order, including a firm hearing date, to focus counsel and the parties on the preparation and presentation of their cases in light of relevant law. I encourage counsel to confer with each other regarding issues, including scheduling and discovery issues, before presenting any for resolution. Where they reach agreement and it seems procedurally fair and reasonable, I generally incorporate their agreements into scheduling and other orders.
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?
As an arbitrator, I rely on the preliminary hearing, initial scheduling order, further written orders as needed, and a pre-hearing conference to manage cases. I encourage
counsel to confer before the preliminary hearing regarding the issues presented, to consider and discuss what relevant and material information they need to prepare their cases and to rebut the opposing party’s case, and to propose a schedule for the case’s management, using the AAA’s scheduling order template. Based on information provided during the preliminary hearing, I may supplement the parties’ jointly proposed schedule regarding the extent of and schedule for production of information, and schedule further actions needed to keep the arbitration process fair, efficient, and focused on relevant and material issues. After the preliminary hearing, I schedule Zoom hearings on pre-hearing issues when they cannot be decided solely on the papers and, when necessary, prescribe time limits on each counsel’s presentation during discovery.
Q. What advice would you give to advocates or parties preparing for arbitration or mediation?
I would advise advocates or parties preparing for arbitration to step back and consider: (1) what, if any, discovery they actually need (rather than what they want or to which they think they are entitled) to support their case or rebut the other side’s case; (2) the easiest and fastest way they might obtain such evidence; and (3) mediation prior to arbitration. I would advise those preparing for a mediation to prepare by considering the opposing party’s interests underlying their stated positions and options for settling the case that would accommodate both parties’ interests. I would also advise them to consider preparing not only an initial, but also fallback and bottom-line, settlement positions, after considering their best alternative to a negotiated resolution.
Q. Which skills or qualities do you believe are most essential for a successful neutral, and how have you cultivated them?
In addition to integrity, impartiality, intelligence, sound judgment, and relevant experience/expertise, a successful neutral, whether an arbitrator or a mediator, needs to be an effective listener and able to identify areas of mutual interest and benefit to the parties. The latter quality is particularly important in mediating disputes and inventing settlement options for the parties’ consideration.