Building a Boot Camp for New York’s New Presumptive ADR

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.

Progress Report: New York Courts’ ‘Presumptive ADR’ Settles In

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.