Rosenbaum seeks career as a mediator

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Former state Supreme Court Justice Matthew Rosenbaum plans to launch a new career as a mediator.

Some four months after abruptly resigning and agreeing not to begin the second 14-year term he had been elected to last November, Rosenbaum has begun quietly reaching out to area litigators in hopes of winning clients for a mediation practice he plans to establish. 

Rosenbaum is the son of Richard Rosenbaum, who before his death last year was seen as a towering figure in state and local Republican politics. At his peak at a time when liberal Republican was not an oxymoron, the elder Rosenbaum served as a top aide to Gov. Nelson Rockefeller, leader of New York’s Republican Party and as a judge.

Matthew Rosenbaum

For much of his own time on the bench, Matthew Rosenbaum presided over the Seventh Judicial District’s Commercial Division, a coveted post that saw him rule on some of the most complex and demanding cases.

Now, Rosenbaum has set up a company, Rosenbaum Mediations, which he has installed in a Brighton office park. 

Rosenbaum’s marketing efforts so far have been confined to low-key outreach to local litigators through a LinkedIn account that as of this week appeared to be open only to contacts Rosenbaum has invited to join his LinkedIn network. Heplans to get the mediation firm fully underway in May, says consultant Laurie Riedman of Riedman Communications Inc., who is guiding Rosenbaum through the firm’s launch.  

Sometimes confused with arbitration, mediation is done by a neutral third party who attempts to lead litigants to a settlement in which both sides make concessions, ending the need for a trial or a court ruling. An arbitrator acts as a sort of substitute judge, hearing both sides’ arguments and handing down a legally binding ruling that usually favors one side or the other.  

Even as COVID-19 has scaled back court activity, mediation remains a surprisingly robust area of legal practice, says Paul Nunes, a longtime local litigator with Heisman, Nunes & Hull LLP. Nunes estimates that serving as a mediator accounts for as much as 25 percent of his practice. 

In an effort to cut caseloads, Nunes notes, federal courts, for several years have required all civil litigants to hold mediation sessions before engaging in a full-on trial, creating a steady demand for mediation services. And while mediation is not a required step in state courts, state court judges encourage the practice.

Michael Burger concurs. He is a commercial litigator and partner with Santiago Burger LLP who also maintains a mediation practice. 

Rosenbaum’s move is not without precedent. Two former retired state Supreme Court justices, Thomas Stander and Robert Lunn have set up mediation practices. James Morris, a former Brighton town justice and acting Rochester City Court judge, also has mediation practice.

Unlike Morris, who operates his own office, Lunn and Stander have done so under the aegis of a law firm. Lunn is with Trevett Cristo PC and Stander has joined Adams LeClair LLP.  

Accustomed to deference and sometimes demanding it, judges do not always make the best mediators, Burger says. Litigator Dave Cook, a partner in Phillips Lytle LLP’s Rochester office, agrees. The rule is not hard and fast, says Cook, who counts Morris as “the dean of local mediation.” 

Like the other former judges turned mediators, Rosenbaum cites his experience on the bench as a point in his favor.

“Having served as the first ever designated lead paint litigation judge, Matthew A. Rosenbaum settled numerous cases in that milieu, while only needing to conduct one jury trial and one bench trial in the seven years he handled that discipline,” states Rosenbaum Mediations’ website. 

As presider over the courts’ commercial division, Rosenbaum took on “a leadership role, handling matters both complex and voluminous, encouraging collaboration rather than parties spending tens of thousands of dollars on an unpredictable trial,” the website adds.

However, neither Morris, Stander nor Lunn carried the same baggage as Rosenbaum into their new lives as mediators.

Rosenbaum’s sudden and unexpected resignation last December came as shock to the local legal community. His agreement to not take the bench in January—despite his election to a second term—for reasons that were not explained was a source of further consternation. Some four months later, the circumstances behind his departure from the bench remain less than clear. 

In a highly unusual move, the Office of Court Administration immediately upon Rosenbaum’s late December agreement to resign announced that he was under investigation for unspecified matters that could result in a referral to the Monroe County district attorney. Further, he would not be allowed to enter restricted court areas. 

While no criminal investigation was announced, a Jan. 13 stipulation handed down by the New York State Commission on Judicial Conduct states that an investigation was dropped in exchange for Rosenbaum’s agreement to never again seek or hold a judgeship. 

“Judge Rosenbaum understands that should he abrogate the terms of this stipulation and hold any judicial position at any time in the future, the commission’s investigation of the complaint would be revived, he would be served with formal written complaint on authorization of the commission, and the matter would proceed to a hearing before a referee,” the commission’s ruling adds. 

As to the precise nature of Rosenbaum’s alleged missteps, the stipulation cites only “a complaint alleging that from 2005 through 2019 (Rosenbaum) made improper and at times abusive personal demands of court staff, directly or indirectly conveying that continued employment required submitting to such demands, and creating a hostile workplace environment.”

Offered an opportunity last week to further explain or comment on the circumstances of his departure from the bench, Rosenbaum declined.

The extent to which those circumstance might affect the willingness of area litigators or their clients to hire Rosenbaum as a mediator remain to be seen. 

Asked to comment on Rosenbaum Mediations’ prospects, several area attorneys said they preferred not to speak on the topic. Those who agreed to comment spoke positively. 

Noting that Rosenbaum would be a competitor to his own mediation practice, Burger says he would have no objection to using Rosenbaum as a mediator if a client or counterparty asked for him.    

While acknowledging that the cloud under which Rosenbaum left the bench might be seen as off-putting to some, Cook says he would have no such scruples. 

Qualities he saw Rosenbaum exhibit as a judge will make him a superior mediator, Cook believes. And, Cook predicts, any qualms some might harbor over employing Rosenbaum as a mediator will be soon laid to rest.

Will Astor is Rochester Beacon senior writer.

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