By Yixian Sun
The New York State Unified Court System introduced presumptive alternative dispute resolution, with a focus on court-sponsored mediation, last year.
Under this statewide initiative, parties in a wide range of civil cases–from personal injury to matrimonial cases, to estate matters and commercial disputes, and more–will by default be referred to mediation as the first step in the case proceeding in court.
In response to the Covid-19 outbreak, New York State Chief Administrative Judge Lawrence K. Marks boosted last year’s efforts by recently issuing Administrative Order 87-20, authorizing judges to “refer matters for virtual alternative dispute resolution, including to neutrals to court-established panels, community dispute resolution centers, and ADR-dedicated court staff.” (See the order at https://www.nycourts.gov/whatsnew/pdf/AO-87-20.pdf.)
On June 10, the leadership of this court initiative conducted a webinar to update the legal community with the past achievements, recent developments, and future implementation plans of the presumptive ADR systems. The webinar was sponsored and hosted by the ADR program at New York Law School.
The panel included Danielle Shalov, an adjunct professor of the New York Law School and the director of NYLS’s Mediation Clinic; Lisa Courtney, the Statewide ADR Coordinator for the New York State Unified Court System; Joan Levenson, the principal law clerk to New York County Administrative Judge Deborah A. Kaplan, New York County, Civil Branch, and counsel to the New York State Judicial Committee on Elder Justice; Jean Norton, the ADR Coordinator for the Supreme Court of New York County; and Daniel Weitz, the Director of the Division of Professional and Court Services for the New York State Unified Court System. (For a comprehensive list of staff contacts in the ADR Office, see http://ww2.nycourts.gov/ip/adr/contactus.shtml)
This video event attracted a diverse audience. Many participants noted in response to an informal survey at the program’s outset that they were interested in mediation and joining in the court rosters, but had not mediated before. The webinar’s primary focus, therefore, was largely on helping the participants build their capability and capacity on presumptive ADR.
“ADR,” traditionally known as alternative dispute resolution, now stands for “appropriate dispute resolution” as well. The message is clear. As Courtney pointed out, different resolution methods are suitable for different cases. After all, in most contexts, parties have been going through a hybrid process, where litigation and negotiation happen in turn until a resolution is reached.
This reality serves as the background against which courts in New York State are trying to switch the default to the less adversarial dispute resolution methods from litigation.
Presumptive ADR is not only about enhancing effectiveness and efficiency, noted Courtney, but also about promoting a greater sense of procedural justice. The initiative calls for a redefinition of a successful dispute resolution–a process where parties are given a chance to express their feelings and have their personal experience understood by the neutrals.
Dan Weitz explained that the basic infrastructure of presumptive ADR was developed through a process of collaborative program design, where various stakeholder groups, including local judges, court administrators, and bar members gathered to devise a set of protocols that would govern the program at the local level.
Two issues emerged the most controversial. One is the nature of referral–should the ADR method be selected by parties’ voluntary choice or under judges’ discretion? The second is how to increase ADR program use at grassroots levels.
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Lisa Courtney led the participants through the history of the still-new court orientation of presumptive ADR. In Spring 2018, Chief Judge Janet DiFiore and Chief Administrative Judge Marks announced the formation of a Statewide ADR Advisory Committee chaired by John Kiernan, who at the time was the New York City Bar Association president, a partner in New York’s Debevoise & Plimpton–and also immediate past chairman of the board of the CPR Institute, which publishes this blog.
In early 2019, the ADR Advisory Committee issued its first interim report. The Committee recommended that the New York State court system significantly expand its statewide infrastructure for developing court-sponsored ADR; promulgate statewide uniform rules; increase connections with Community Dispute Resolution Centers; encourage and educate about court-sponsored mediation; and develop mechanisms to evaluate and monitor individual programs. (See at https://ww2.nycourts.gov/doc/18791.)
New York Chief Judge DiFiore embraced the interim report, and the initiative, wholeheartedly. In February 2019, DiFiore immediately announced the Presumptive ADR Program as a part of her Excellence Initiative. Soon after that, DiFiore and Chief Administrative Judge Marks charged the Deputy Chief Administrative Judges, Judge George Silver for New York City and Judge Vito Caruso for outside New York City, to implement the Presumptive ADR program. Throughout summer 2019, district administrative judges around the state worked with their court staff to develop and refine plans to realize this vision.
Since then, the NYLS seminar panelists reported, a massive training was conducted involving more than 550 attendees, including more than 300 court staff. The trainings varied. Some were 90 minutes, some were day-long settlement skills workshops; some required 24-hours over multiple days, and still others were comprehensive 40-hour, multi-day sessions.
The trainings were designed as an integral part of the stakeholder engagement. For court staff, the efforts were designed for infrastructure building, to construct ADR confidence, familiarity and trust in public employees who would send the parties to mediation and other ADR services. The training also served to address the concerns of litigators and mediators who might have felt that they would no longer perform familiar tasks in a familiar forum.
Meanwhile, protocols and templates were drafted, an ADR SharePoint Intranet site was created for judicial districts to learn from each other’s experiences, webinars were hosted, and an ADR case management database was built to track efforts at local courts. The official ADR page of NYS Unified Court System can be at http://ww2.nycourts.gov/ip/adr/index.shtml; it’s an information hub for those who are interested in learning about and using New York state presumptive ADR services.
In the July/August 2019 Edition of Alternatives, the CPR Institute described the early details of the presumptive ADR program, citing Kiernan’s comments, that court-sponsored mediation “is a great vehicle proven to deactivate [litigants’] adversary synapses and activate their problem-solving synapses before they send a lot of time and resources fighting the dispute.” See “‘Presumptive Mediation’: New York Moves to Improve Its Court ADR Game,” 37 Alternatives 107 (July/August 2019) (available at https://bit.ly/2Cb2h8g).
Earlier this year, this CPR Speaks Blog reported the latest progress in the implementation of this initiative. (See at https://blog.cpradr.org/2020/01/27/progress-report-new-york-courts-presumptive-adr-settles-in/)
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Understandably, the NYLS panelists acknowledged, resistance continues to exist, and there are ways to deal with it. One solution discussed by the panel is to start in places with pre-existing infrastructure. For courts that are already equipped with rules and rosters, the task is to enhance use and to grow the presumptive ADR program to include more case types. Judicial districts were also invited to conduct a self-examination to find out in which areas the presumptive ADR efforts would be most useful in deploying to ease the caseload. The essence of reform, after all, is to address the real concerns of stakeholders, the panel pointed out.
This statewide effort to promote usage of ADR methods has been receiving massive support from the county level—even before May 2019 when the official announcement to implement presumptive ADR program was made.
Panelist Joan Levenson introduced the “Presumptive Early Mediation Program for Non-Commercial Division Commercial Cases” as a successful and illuminating example of the county court’s undertaking. This program was launched in May 2017 and called for automatic referral for certain types of commercial cases to mandatory mediation. It has been expanded ever since and graduated from its pilot status.
Cases involved usually have an amount of controversy under $500,000—contract cases below New York County commercial division jurisdictional limits (statewide limits available here) —which make up the majority of the New York County civil branch’s caseload.
Under this program, after filing a request for judicial intervention and before meeting the judge, counsel and parties will attend a preliminary conference held by New York County Supreme Court Senior Settlement Coordinator Kevin Egan. In this conference, parties discuss the discovery needed to conduct a fruitful mediation.
Then, a mediator from the commercial division roster will be assigned, and the mediation scheduled, usually within 30 days after the end of the exchange of information. Consequently, around 60% of the cases will be settled.
Not every pilot program turned out to be impressive. In 2014 to 2016, the New York Supreme Court—the state’s trial court—had launched a “One-in-Five Pilot Project.” As the name suggested, every One-in-Five cases was sent automatically to mediation.
Joan Levenson raised two reasons to explain why this project did not work. First, many referrals were not appropriate for mediation, and thus not enough cases were generated. Second, attorneys were allowed 120 days from the filing to choose a mediator or have one assigned. In many cases, the counsel simply did not respond.
But important lessons were learned, Levenson reported. First, arbitrary selection of cases for mediation does not always work. Second, to move things forward, the court needs to set a shorter period for the mediation to take place.
Another challenge faced by the courts seem to be the overzealous representation. Fortunately, panelist Jean Norton noted, many attorneys, after attending mediation with clients for several times and seeing the positive consequences, have become much more supportive of ADR. Even those who do not support ADR wholeheartedly will accept it for the clients’ interests. The key, she said, is to push the attorneys to transform the traditional mindset, and to rethink about how they can support their clients in a most constructive way.
Joan Levenson added that the 40-hour mediation training changed many litigators’ views. In fact, said Norton, the New York County Supreme Court’s matrimonial mediation rosters include some well-known matrimonial attorneys who used to object completely to the idea of mediation, but ended up joining the roster after developing a better understanding of mediation via training.
Indeed, the New York State Court System requires those who want to become mediators take a series of trainings before getting on board. As moderator Danielle Shalov described, the requirement is designed as a mix of a unified boot camp plus personalized mediation-related experience.
Under Part 146 of the Rules of the Chief Administrative Judge, “Mediators who wish to qualify for appointment to a court roster must have successfully completed at least 40 hours of approved training,” including “At least 24 hours of training in basic mediation skills and techniques,” and “At least 16 hours of additional training in the specific mediation techniques pertaining to the subject area of the types of cases referred to [the mediators].” (Part 146 details can be found at http://ww2.nycourts.gov/ip/adr/Part146.shtml.)
Besides the training, Part 146 also calls for “recent experience mediating actual cases in the subject area of the types of cases referred to [the mediators].” Lisa Courtney explained that this requirement is flexible. Those who are interested can join formal apprenticeship, seek for informal mentorship, or participate in co-mediation.
It is up to the discretion of the local administrative judge to decide what kind of experience fulfills the requirement, what additional qualification is needed, and who is finally placed on a mediation roster.
Finally, mediators should attend “at least six hours of additional approved training relevant to their respective practice areas every two years.” Specific design of such training falls within the discretion of local ADR coordinators, since each court has its unique demands.
Attorney-advocates are welcomed to get involved and increase their familiarity with mediation as well. Last year, Levenson said, a CLE program called “ADR options in New York County” attracted a great litigator attendance.
Trainings are also available for specific practice areas. For instance, as Norton mentioned, the New York County Supreme Court has offered domestic violence training for mediators in matrimonial cases.
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Once they have gathered enough technology support, courts are prepared to resume trainings interrupted by the coronavirus. Norton named a list of opportunities in the New York County Supreme Court: mediator orientation, trainings to transport previous best practices for future court mediations, and short sessions designed to ease the burden of 40-hour training and to highlight necessary skillsets.
What’s more, to address a diverse composition of case types and parties, courts at state and county levels are working together to build a sufficiently diverse roster.
According to Dan Weitz, the court system is connecting with as many diverse bar associations as possible in recruitment of mediators, and has included cultural competency is included as a part of the mediator training.
A diversity statement has been added to the mediator application process, added Lisa Courtney, through which applicants can demonstrate how can they contribute to a more diverse roster with their personal identities, cultural backgrounds, life experience and language skills.
And court staff are a wonderful resource, Courtney said. She noted that many court attorneys have diverse backgrounds and close connections with the local community. They can serve as trusted neutrals as well.
At the county level, the recently-launched Presumptive Matrimonial Mediation Program serves as an illustration. To deal with the highly personal issues, the New York County Supreme Court devised an extensive recruiting processes to attract mediators and attorneys with diverse backgrounds, foreign language skills, and family law expertise.
Covid-19 disrupted the original implementation plan. But Norton explained that since traffic and location is no longer a problem for Zoom mediation, neutrals with diverse backgrounds that meet the parties’ needs but live far away have become more accessible.
Despite the pandemic, the presumptive ADR initiative has continued. Jean Norton admitted that there is a learning curve for virtual mediation. Whereas it is hard for mediators to conduct their first mediation on Zoom, the experience improves with more practice.
In the matrimonial context, the concerns are different. Parents don’t want their children overhearing their divorce mediation, and mediators have to plan for a variety of factors and emergencies. It is also harder to physically separate hostile parties, so mediators have to think creatively to prevent conflicts from escalating in a single space. At the same time, virtual mediation means no time wasted on transportation and no alternative babysitting arrangement needed.
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A final point: New York does not have statutes to order people to pay their mediators, but there are ways to help the mediator’s hard work get rewarded, explained Statewide ADR Coordinator Lisa Courtney. Under the May 1 Administrative Order 87/20 noted above, courts can order parties to participate in a short, initial mediation session. When parties see the value in such processes, they may continue under an agreement to pay.
As many elements of the presumptive ADR initiative, this is how fundamental changes have been brought: invite stakeholders to participate, let them see the real benefits, and build a trusted relationship.
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Editor’s Note: A video of this event can be found at https://bit.ly/3ehMenh. For details of a court-approved Part 146 Initial Mediation Training, hosted by the New York Law School, https://bit.ly/2ChuAlu.
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The author, a second-year Harvard Law Student, is a CPR 2020 Summer Intern.