The Honorable Harriet Farber Klein ’70 was a Political Science and History major. She earned her J.D. degree from Rutgers Law School-Newark in 1973. She began her career as a law clerk to the Hon. Irwin I. Kimmelman in the Essex County Superior Court, Chancery Division. Harriet practiced as a litigator with two New Jersey law firms, becoming a partner at the Woodbridge firm of Greenbaum Rowe Smith & Davis. In 1998, she was appointed to the New Jersey Superior Court bench in Essex County. Harriet has attended numerous AADC events and has been a consistent contributor to the AADC Annual Fund and Capital Campaign. Here is her story, shared on August 27, 2020.

When I retired from the judiciary after almost 17 years on the New Jersey Superior Court bench, my list of options was fairly short. Full retirement was, for me, not one of them. I still had too much energy, and after accumulating and using legal knowledge for most of my adult life, I was not ready for that to come to an end. Neither, however, could I go back to my former practice as a litigator. New Jersey is one of the few states in the country that does not permit appearances before one’s former judicial colleagues. So, I did what many retired judges do. I entered the field of dispute resolution, specifically mediation and arbitration. Since 2015, I have been Of Counsel to the firm of Wilson Elser in Florham Park, NJ, which I quickly realized was a great landing spot for me.

A former judge’s transition to the field of arbitration, which is essentially private judging, is a fairly easy one. Mediation, on the other hand, is a different animal altogether. It is a strictly consensual and voluntary process, cloaked in confidentiality, involving absolutely no decision-making or compulsory disposition. My role is that of a neutral, sometimes called a facilitator or “settlement coach.” I talk with each side separately and go back and forth between them in a form of shuttle diplomacy, with the goal of enabling them to recognize common interests that promote a settlement, such as the avoidance of litigation risks and costs. I availed myself of a 40-hour mediation course offered through the State Bar’s Institute for Continuing Legal Education (ICLE) and joined an Inn of Court devoted to dispute resolution practice. There, I met numerous colleagues in the field, all eager to share their knowledge. Within about six months I had done my first mediation, the first of many — and still counting.

One of the reasons I have enjoyed the latest segment of my career arc is that it satisfies my craving for contact with people. I have met countless new and interesting people through my cases. Better yet, I love the atmosphere and culture of my office, and the ability to engage in daily conversation with co-workers on various topics. My position enables me to attend meetings, conferences and conventions, serve on organization boards, and speak at panels as I did as a lawyer and judge.

Fast forward to 2020 and the pandemic. When I packed up my laptop and some files to bring home in March, I never imagined that I would not be back over four months later. The recent flare of the virus in areas where social distancing and other protocols were not observed has created increased uncertainty as to whether we, as an office, will be allowed on premises for the balance of this year.

Much as it has done to everyone for the time being, the shut down has negated all of the social advantages that have fueled my desire to continue working. Moreover, in mandating that people not be in physical proximity to each other, it also posed a threat to the fundamentals of the dispute resolution process as I knew it.

Even prior to the advent of COVID-19, some people in the profession were promoting remote mediation and arbitration through virtual platforms. I had been one of its most vocal critics. Based on my experience, how could one hope to be effective in influencing and communicating without being in the presence of another, looking into his/her eyes? How could you really assess a person’s demeanor and body language through a computer screen? How could you command a person’s full attention and concentration? I felt that my strength in these areas was best exercised up close and personal. As if that wasn’t enough, I confess that there was yet another powerful element to my resistance. Being part of the generation that grew up without technology, I am often intimidated by it and distrustful of it. My unease has not been at all ameliorated by my success at online shopping.

As the weeks dragged on, I realized that I had the choice to either do nothing for who-knows-how-long, or learn how to do a virtual mediation. Luckily, the local, state and national bar associations, as well as platforms such as Zoom, stepped up to offer almost weekly tutorials. I again went back to the classroom, so to speak, and took four or five of these courses. In mid-June, I conducted my first mediation via Zoom. Although I had some jitters and there were a few hiccups, nothing interfered with the proceedings. I have since done a successful nine-hour mediation on Zoom from the confines of my home, with more scheduled to follow.

I have to admit — perhaps like a visit to the dentist — it was not as bad as I expected. A Zoom mediation simulates what one would do in an office setting, by creating virtual “rooms” for each of the parties and enabling the mediator to move between the rooms and talk to each side confidentially.

Now when attorneys seem reluctant to do other than in-person mediation, which is still discouraged here in New Jersey, I actually suggest doing it through Zoom. The early concerns about security breaches in the platform have been addressed and remedied. I am finding that participants, including many lawyers, are more patient and forgiving as we all struggle to navigate this new territory. Then, too, I have come to appreciate that seeing a person’s full face and expressions on a screen may be better than a masked face across a room.

That is not to say that I want this to be the norm going forward. While none of us know what the future will look like, I am hopeful that we can all be physically present once a vaccine is available.

Remote mediation is not necessarily something that I wanted to add to the skill set I already had, but I am grateful for the opportunity to grow and develop and learn new things. In the future, it may come in handy on snow days or when parties live on opposite sides of the country and don’t want to travel. Otherwise, however, I am looking forward to being back “in the room where it happens.”