For several years, on an ad-hoc basis, Alternative Dispute Resolution (ADR) programs have been in place in various courts throughout New York State. These have ranged from a matrimonial mediation pilot in Kings County (of which we are a part) to a robust ADR program in the Commercial Division in New York County to judicial settlement conferences across the state. While all of these, and others, represent a wide-ranging definition of ADR and will certainly continue to shape settlements across the legal spectrum, we now find ourselves at a new moment.
In her State of Our Judiciary speech on Feb. 26, 2019, Chief Judge Janet DiFiore declared: “The time is right to provide litigants and lawyers with a broader range of options to resolve disputes without the high monetary and emotional costs of conventional litigation. We consider this vision of ADR to be an integral part of our Excellence Initiative, and we are excited to work with the Bar to make it a reality.”
Given this charge and vision, we sought out the opportunity to speak with Lisa Denig, special counsel for ADR Initiatives, Office of Deputy Chief Administrative Judge George Silver. Ms. Denig is tasked with nothing short of implementing the state-wide Presumptive ADR Program.
The Office of Court Administration is motivated not only to reduce the overwhelming caseloads across the state, but Ms. Denig also reflects that litigants who progress through some aspect of ADR report greater satisfaction in their court experience. This notion of party satisfaction is implicit in much of ADR theory, marked by autonomous decision making, voluntariness, neutrality of the professional and buy-in of the stakeholders and parties.
In terms of the Presumptive ADR Program, by Sept. 1 of this year, plans from each administrative judge as to how he or she intends to implement ADR in each court are to be submitted to the deputy chief administrative judge. Those submitted plans, in turn, will be reviewed and rolled out this Fall, some right away and others scaling up with added resources as needed. Regardless, says Denig, by the end of the year, all plans should be in place.
For the past year, Denig and her colleagues have traveled around the state, making the rounds to speak with attorneys and other professionals at bar association meetings and at smaller committee meetings. The goal has been to connect with lawyers and other stakeholders, and discuss how the upcoming programs will work while also gathering feedback on the programs currently in place. It is to be expected that lawyers in particular are acclimating as they assess how they will participate in this shifting landscape. In the words of Denig: “People are ready to try something new. Timing is everything. This program has been tried in a different form in years past with less success, but now ADR is relatively commonplace. Both parties and lawyers are more familiar with it and are more willing to give it a try than a decade ago.” She added: “The Bar’s been a wonderful support for the program and we believe they’ll continue to be as things move along.”
As for the mediators themselves, they are “excited and willing to partake,” says Denig. For some lower civil court cases, the intention is to collaborate with Community Dispute Resolution Centers (CDRCs). This tracks a model used in many other states where volunteers constitute the bulk of the mediators. According to Denig, the CDRC’s in each jurisdiction “have been so helpful in trying to ramp up their availability and services in order to meet what is going to be an enormous need.”
In terms of private mediation and early neutral evaluation practitioners, they will be held to the training and experience requirements of Part 146 of the Chief Administrative Judge’s Rules, which are as follows:
146.4 Qualifications and Training of Neutrals
(a) Neutral Evaluation. Neutral evaluators who wish to qualify for appointment to a court roster must have successfully completed at least six hours of approved training in procedural and ethical matters related to neutral evaluation and be:
(1) Lawyers admitted to practice law for at least five years who also have at least five years of substantial experience in the specific subject area of the cases that will be referred to them; or
(2) Individuals who have served at least five years as a judge with substantial experience in the specific subject area of the cases that will be referred to them.
(b) Mediation. Mediators who wish to qualify for appointment to a court roster must have successfully completed at least 40 hours of approved training as follows:
(1) At least 24 hours of training in basic mediation skills and techniques; and
(2) At least 16 hours of additional training in the specific mediation techniques pertaining to the subject area of the types of cases referred to them.
Mediators must also have recent experience mediating actual cases in the subject area of the types of cases referred to them.
Those mediators who meet the standards and are empanelled will be expected to provide the first 90 minutes of mediations, pro bono. While a significant contribution, this time affords the parties and counsel the full benefit of mediation contracting. These first communications introduce how a mediation process unfolds, step by step. This is an essential component of all mediations, all the more critical where parties are considering a shift away from a litigation to a new model of conflict resolution, one with which they may be completely unfamiliar. This contracting phase provides the forum for party buy-in to mediation and, importantly, clarifies among all the role counsel will play in a mediated settlement process. Other topics during the contracting phase include: the role of the law, discovery, how the mediators manage communication, confidentiality, mediator neutrality, voluntariness of the process, and even how the cost of mediation is borne.
For many parties, the chance to have a facilitated, direct discussion and potentially make autonomous decisions is refreshing and may loosen their conflict dynamic. Optimistically, smaller agreements made together during contracting, such ground rules and the order of the agenda, may lay the groundwork for further resolutions to the extent the parties continue to find the facilitated sessions productive. Should they wish to continue with the mediator after the initial free 90 minutes, the mediator then provides his or her private practice retainer/mediation agreement, setting forth the terms of engagement including his or her hourly fee.
As Ms. Denig has been on the front lines championing and managing this tremendous undertaking, she is particularly sensitive to measures of success—quantifiable and less easily quantifiable. In other words, some cases settle quickly in mediation and are clearly deemed a success. Others may narrow the range of issues still on the table in mediation, thus shortening the length and cost of the litigation. “If parties go to mediation, come back to court, and then settle—that’s success too,” says Denig, though admittedly less straightforward to track and characterize as resulting directly from participation in the presumptive ADR program. “We are debating how to capture all the successes that don’t mirror the immediate ones of going to mediation and resolving.”
As mediators, we have learned that often facilitated conversations help parties shift away from entrenched positions and benefits can be subtle, long-lasting and nearly impossible to measure on a data form. Rather, we have witnessed significant creativity, compromise and willingness to come to final agreements upon appreciating the other’s perspective—even when one disagrees. Parties also appreciate saving time and money.
This is a sea change for litigants and practitioners across New York state. Those initiating, designing and responsible to implement the Presumptive ADR Program all expect a measure of growing pains, feedback and adjustments in the coming months. As devoted practitioners of alternative dispute resolution, we applaud this undertaking look forward to the realization of Chief Judge DiFiore’s vision, thus affording parties the opportunity to work together toward thoughtful, autonomous, mutually agreed-upon settlements.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.