My Way, Your Way or a New Way? Presumptive ADR is Coming to New York State Courts
By Diane Rosen
Diane Rosen is a member of the City Bar’s Alternative Dispute Resolution Committee, and a lawyer, mediator and executive coach and consultant practicing in New York City.
This past May, the NYS Unified Court System/Office of Court Administration (OCA) announced an initiative, known as Presumptive ADR, to proactively integrate alternative dispute resolution into the civil court system. The intention of the project is to facilitate expeditious and less-expensive resolution of disputes to advance the administration of justice among disputants. Building on the success of existing mediation and other ADR programs, Presumptive ADR will expand the availability of ADR throughout the system in a robust and organized manner. Chief Judge DiFiore’s and Chief Administrative Judge Mark’s press release is available at https://ww2.nycourts.gov/doc/18796.
OCA’s Statewide ADR Advisory Committee noted in its February 2019 interim report and recommendations that court-sponsored mediation and ADR programs can facilitate high settlement rates; reduce the time and cost of dispute resolution; enhance parties’ personal agency, self-determination and communication; and create opportunities for parties to fashion their own workable and mutually acceptable solutions. For those not familiar with ADR, a neutral works with the parties to a dispute to facilitate a conversation during which the parties can discuss their perspectives and explore resolution options in a forum designed to promote mutual understanding of their respective positions and interest and move toward a settlement which they have crafted. The ADR Advisory Committee’s interim report is available at https://ww2.nycourts.gov/doc/18791.
Currently, there are various court-sponsored mediation and other ADR programs pursuant to which cases are referred to ADR in the course of litigation. Depending on the particular court, such referrals may or may not be within the discretion of an individual judge and, once referred, the parties may or may not be mandated to go to mediation (many such programs require parties to a dispute to opt in to mediation or other ADR modalities). Each program develops its roster of mediators based on the protocols of the participating court and a set of statewide minimum training criteria. Some ADR programs are less formal and include conferencing processes, referral to court-staff neutrals and accelerated fast-track litigation. ADR is widely used in some New York State jurisdictions and less so in others. This new initiative looks toward normalizing ADR programs across the state to a model where qualifying cases will be automatically referred to mediation or other ADR services with qualified neutrals.
The Rollout. The Presumptive ADR initiative is spearheaded by Deputy Chief Administrative Judges George Silver and Vito Caruso and their staffs, in collaboration with administrative and trial court judges, the Statewide Office of ADR bar associations and other stakeholders. In order to coordinate the statewide effort to expand the number and scope of court-sponsored ADR into civil court, the following steps will be taken:
- Administrative Judges in each Judicial District (and specialty courts such as Family and Surrogates) are tasked with formulating local plans to implement the initiative for their jurisdiction and/or particular court.
- Uniform OCA rules will be promulgated to authorize, endorse and create a framework for ADR through automatic presumptive referrals (with opt-out provisions as appropriate).
- The courts will expand the use of existing Community Dispute Resolution Centers and existing rosters to take advantage of established infrastructure and rosters of neutrals.
- The courts will expand training opportunities to develop a pool of qualified neutrals statewide.
- The courts will embark on an awareness-raising campaign to promote ADR and educate the public and lawyers as to the benefits and role of ADR in efficient and effective dispute resolution.
As of now, the Administrative Judges have submitted their plans and they are currently being reviewed by Deputy Chief Administrative Judge George Silver and Deputy Chief Administrative Judge Vito Caruso, as well as Chief Administrative Judge Lawrence Marks. The goal is to implement most of the ADR plans by the end of the year.
The success of this initiative requires outreach to existing, and the training of additional, neutrals to provide quality dispute resolution services in what is expected to be a surge in the use of mediation and other ADR modalities. To serve as a neutral in a court-sponsored ADR program, individuals are required to comply with relevant training provisions of Part 146 of the Rules of the Chief Administrative Judge (or its equivalent) or with a recognized Community Dispute Resolution Center.
Upcoming Mediation Trainings. The City Bar plans to offer both basic and advanced mediation training in 2020.
4-day Basic Mediation Training: February 25, February 26, March 3 and March 4;
3-day Advanced Commercial Mediation Training: June 3, June 4 and June 5.
These intensive, interactive programs offer significant CLE credits and the opportunity to practice skills in real time. Both trainings are approved Part 146 programs. City Bar members receive discounted pricing and there is early bird pricing for early registrants. To register for the Basic Mediation Training, please click HERE. To register for the Advanced Commercial Mediation Training, please click HERE.
If you are a trained neutral, please take this survey. To assist the Courts in generating a roster of qualified mediators and other neutrals, we invite interested lawyers to complete a brief survey that can be found at https://forms.gle/akqbfyrrf3uZichL9. This survey is geared to individuals who have completed the Part 146 neutral training or its equivalent.
