By Anne Muenchinger and Russ Bleemer
The New York City Bar Association hosted on Wednesday a panel discussion aimed at assessing the progress in the implementation of a new “Presumptive ADR” initiative in the New York State Court System.
The push for conflict resolution processes ahead of litigation is part of New York State Chief Judge Janet DiFiore’s Excellence Initiative, seeking to reduce litigation costs and empower parties by introducing mediation early in the process and increasing settlement rates. See Savannah Billingham-Hemminger, “Update: ADR Breakfast on New York State’s Presumptive Mediation Implementation,” CPR Speaks (July 16, 2019) (available at http://bit.ly/38GeCfx).
Since last summer, thanks to the concerted efforts of administrative and supervising judges and court staffs, as well as ADR practitioners, courts have begun to carry out this initiative by expanding current ADR programs and designing new ones. A May 2019 announcement (see press release at http://bit.ly/32lhjkq) tasked the courts with rolling out “local protocols, guidelines and best practices” by September, re-focusing a task force report on a broader “presumptive ADR” from the report’s focus on mediation.
Administrative judge panelists at the bar association continued that emphasis, discussing a wide variety of ADR processes that courts across the board are or will be deploying for party use.
The panel began by outlining the progress over the past year in their respective courts, followed by a broader discussion on challenges the system is facing with broadening and implementing presumptive ADR.
Judge Anthony Cannataro, the administrative judge of the New York City civil courts, began the discussion by outlining some of the ADR processes traditionally used in civil court, notably binding arbitration and evaluative techniques.
He emphasized a new role that Community Dispute Resolution Centers—the local nonprofits with which the state court system partners to provide mediation, arbitration and other ADR options as a court alternative–are taking on by providing the infrastructure needed to address the great influx of cases that are now being sent to mediation.
Cannataro reported that mediation has been remarkably successful in one category of cases traditionally challenging for judges: those where a party has no representation. Those pro se cases often have emotions running high over personal issues.
He also pointed to the successful use of judicial hearing officers in cases that are transferred from the Supreme Court (the Supreme Court is New York state’s trial-level court), as well as the increased use of settlement conferencing, and accelerated trial judgments.
Cannataro said he anticipates the need for a strong mentorship program to train new mediators, a greater use of early neutral evaluations, and the development of mass settlement conferences. The conferences would provide speedier resolution for high-volume practices, such as no-fault insurance cases, where thousands of filings presenting almost identical elements could be resolved at once.
The implementation of such a program requires negotiation with larger insurance carriers and providers in order to take a statistical value approach, which may enable a more systematic and speedier resolution, and a significant relief for crowded dockets.
For panel member Judge Jeanette Ruiz, who is administrative judge of New York City’s family court, the new initiative move is much more than a shift toward ADR. She told the audience of about 100 that it is an opportunity to transform certain aspects of the family law practice that have historically not received much attention.
Child custody practice—particularly, custody visitation cases–Ruiz reported, is an area that will likely benefit from greater mediation use, as exemplified by the success of a small pilot program recently launched in Queens.
One of the key features for Judge Ruiz has been the development of a detailed screening process to determine which cases would better be resolved through ADR processes. This screening, which covers all parties to a dispute, divides cases along three tracks: cases to be sent to mediation, to structured conferences for some of the more complex cases, and those which are best resolved via expedited trial.
This determination occurs according to the presence of certain factors, including domestic violence, mental illness, substance abuse, and a history of litigious behavior. Cases involving these factors will likely fall into the third track.
Ruiz emphasized the importance of engaging the legal community in the transformation in the court system. A planning committee has been set up in order to collect data, get feedback and to remain in touch with community members in order to ensure a successful transition into an ADR-oriented system.
Justice Deborah Kaplan, administrative justice of New York County’s Supreme Court, expressed her enthusiasm for this transition, citing the New York court system benefits from more ADR programs throughout the state’s 62 counties.
She said she believes that efficiency–one of the goals sought through the initiative’s implementation–would be achieved in curtailing discovery to that sufficient for mediation. This will be accomplished in part through strict time limits for document production, during which a mediator would be assigned in order to schedule an initial session within 30 days of filing.
In addition, automatic early referral is a key component to the program’s success, as the parties are encouraged to think about the issues that set the case in motion.
Justice Kaplan cited a laundry list of current ADR programs, including judicial mediation programs, early settlement malpractice, matrimonial early mediation, and “skilled matrimonial early neutral evaluation.” In addition, many programs are currently undergoing expansion, including presumptive matrimonial mediation, the tort neutral evaluation program, tax certiorari cases in which property owners can challenge a real estate tax assessment, and a successful presumptive mediation pilot program for cases in New York County’s non-commercial division–cases involving less than $500,000.
She also discussed programs for summary jury trials in automobile cases and dispute resolution processes for asbestos matters, where Kaplan said more than 3,000 cases were invited to a special settlement day which she suggested would be repeated.
The panel generally agreed that summary jury trials should be expanded, but moderator John Kiernan warned that commercial-side efforts to increase SJTs had been disappointing, mostly due to party resistance.
Justice Kaplan also emphasized the importance of screening from ADR processes in matrimonial cases involving domestic violence or power imbalances, which she said is done by an outside agency.
Finally, she underlined the importance of making public a diverse roster of ADR practitioners—a searchable roster, said Kaplan, that will allow a party to find a neutral directly “so that you will never have to come visit us in the court.”
Moderator Kiernan, a New York-based Debevoise & Plimpton partner who headed the task force that issued the report that the court system used for the presumptive ADR initiative, responded that “the speed of change in the courts is amazing.”
A discussion including all panel members covered concerns about a lack of facilities, significant implementation time requirements, and a severe lack of multilingual neutrals as the challenges in the shift toward ADR moves forward.
Diversity was an important topic of discussion, in response to an audience inquiry. Lisa Denig, Special Counsel for the ADR Initiative for the state’s Office of Court Administration, spoke at length on the issue, noting that the increased ADR use has ignited a renewed effort to recruit a diverse group of new mediators in order to better address the disputants’ needs. Several projects are in the works to provide better access to mediation training programs, she said.
Another important issue is neutrals’ compensation. Currently, parties are provided with a free 90-minute session, beyond which they may continue for a fee. This practice is particularly important in order to encourage parties to make use of these programs and to encourage higher settlement rates.
Denig acknowledged the need for discussion on this issue, which she said will intensify as programs are up and running. She noted that mediators are paid in successful programs in other states.
Panelist Lisa Courtney, the Office of Court Administration’s statewide ADR coordinator, pointed out that family court mediators already are paid, and a current goal is adding more languages capabilities. She discussed the CDRC’s “gold standard” training as essential in building mediation programs.
Kiernan—who was chairman of Alternatives’ publisher, the CPR Institute, when he organized the task force as part of his initiatives, at the same time, as the NYC Bar Association president–said that the system can expand to “tens of thousands” of mediation cases with existing neutrals and volunteers. But he said that to get to “hundreds of thousands of cases,” programs in New Jersey and Florida needed thousands of mediators. “You need paid mediators,” he said.
Kiernan said the court ADR programs ultimately are effective, with “staggeringly low” opt-out rates.
Audience member Roger Juan Maldonado, a litigation partner in New York’s Smith, Gambrell & Russell, LLP. who is the current NYC Bar Association president, returned to the issue of representation, urging the panel to consider the issue of appointed counsel for pro se litigants in light of the huge numbers of such cases.
Panelist Judge Cannataro said he believes all court processes are better with representation on both sides, but suggested that the courts had to address the cases as they come. Cannataro assured Maldonado and the audience that the court system would examine where ADR works with and without representation, and will monitor closely the outcomes.
Finally, the topic turned to a unification of ADR rules for the future. While the task force report initially proposed creating a set of rules, the Office of Court Administration and Chief Administrative Judge Lawrence Marks made the decision not to issue them at the outset. (For more, see “‘Presumptive Mediation’: New York Moves to Improve Its Court ADR Game,” 37 Alternatives 107 (July/August 2019) (available at http://bit.ly/2GbCWdK).
They felt it would be best to let the programs develop and evolve so that future rules would be better adapted to the multiplicity and diversity of ADR programs that were in development last summer for the September 2019 launch.
“Many were surprised about that,” said John Kiernan, but the courts statewide so far have developed “great new plans and programs without it.” He added that he expected uniform statewide rules would emerge eventually.
Lisa Denig agreed, and discussed development of a standard-setting ADR protocol in the state’s matrimonial courts, though she said that she expects it will take some time to develop it as the courts implement their local programs.
For the moment, quality control will be measured by an ADR coordinator and screening processes for newly trained mediators, though Judge Anthony Cannataro said that good mediators are instrumental in recognizing cases that should not be mediated.
Anne Muenchinger is a CPR Institute Spring 2020 intern, and an LLM student at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City. Russ Bleemer is the editor of Alternatives.