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Mediation notice proposal sparks internal debate

iStock image used with permission.

A section of the New York State Bar Association is milling over a proposal to have all attorneys let their clients know mediation is available as an alternative to resolving their disputes.

A formal resolution, presented earlier this month by the association’s Dispute Resolution Section, drew mixed reactions and was withdrawn.

“We are a diverse organization that includes lawyers with varying perspectives,” said Nicholas J. Parrella, NYSBA associate director of media services. “It’s not unusual for one group of members to offer a proposal that others have a difference of opinion on.  I’m sure this will be a subject of continued discussion in the future, but we couldn’t speculate at this point on where that discussion will lead.”

The resolution, recognizing the increasing use of mediation services over the past decade and how mediation can offer tailored resolutions not available in court, is to encourage wider consideration of mediation.

The Notice of Mediation, according to the Report of the Dispute Resolution Section, is an educational tool designed to inform the client about the availability and benefits of the mediation process and to prompt early discussions with counsel about the options available in lieu of litigation.

“The underlying thought is that counsel must act in a manner best designed to meet the legitimate needs and interests of their clients,” the report says. “This can be furthered by utilizing processes most appropriate for those needs and interests in a cost-effective and transparent manner.”

The proposed notice would inform clients of their right to a trial before a judge or jury to resolve their civil disputes, while noting that more than 90 percent of all lawsuits are settled before trial, which reduces the expense and inconvenience of litigation.

“I think it needs further exploration,” said Robert G. Witmer Jr., senior counsel at Nixon Peabody LLP in Rochester and a past president of the state bar. “The concept of recommending mediation is positive and admirable, but there may be some difficulty to a one-size fits-all solution.”

He said there may be some types of disputes or times in a dispute where recommending mediation would not be appropriate.

“I think this could impinge on the independent advice that a lawyer should provide to his client in every instance he or she were required to provide that notice.”

June Castellano, of the Law Office of June Castellano in Rochester, is concerned about promoting mediation to victims of domestic violence.

“It could be very dangerous,” she said. “Mediation is based on the premise that the individuals participating in the mediation are on an equal footing and able to negotiate together without fear, duress or coercion. In a domestic violence situation, those are all of the things that are actually present.”

Castellano said most mediators she knows specifically screen for domestic violence situations to avoid them. She also noted most orders of protection include a stay-away order which would be violated by bringing the parties together.

Castellano said it is different when those parties appear in court with a court deputy monitoring security, the judge policing from the bench and separrate waiting rooms to prevent someone who is seeking an order of protection from sitting next to the person he or she is seeking protection from.

“Even if there is no physical concern, because you’re in public, it can be very emotional and traumatizing,” she said. “Sometimes, it’s a look. The other person will glare at you from across the room. I have had clients break down in tears or begin shaking uncontrollably.”

Castellano said when she meets with individuals for the first time on a family law situation that does not involve domestic violence, she explains all the options available from traditional litigation to collaborative law and mediation.

“With respect to this notice requirement, one of the concerns that I have is that it’s an additional mandate on attorneys and possibly an artificial one,” she said. “It’s the mandatory nature that is extremely troubling. I have had people say to me ‘Why wouldn’t you want to tell someone about the less costly, faster process?’ First of all, I don’t know that it less costly and faster but, in specific situations, I already do talk about all the various options and weigh the pros and cons with the individual. This kind of notice would interfere in my ability to engage with this client.”

Castellano, who was at the House of Delegates meeting and is vice president of the NYSBA’s Seventh Judicial District, noted she was speaking as a private practitioner because the bar has not taken a position on the matter.

Michael Seinberg, director of communications and technology for the New York State Dispute Resolution Association agreed, noting his association supports mediation throughout the state whenever it’s appropriate, depending on the case.

“It’s certainly not appropriate for every case,” he said. “As far as what it is going on with the bar association, it is an internal dispute. We see that strictly as a debate between different sections of the bar association and we have enormous respect for our colleagues at the bar and we have great confidence that they will come up with a policy that works.”

James C. Moore, senior counsel at Harter Secrest & Emery LLP, thinks it is a good idea to have attorneys notify clients of a mediation alternative. He said it would be just checking off one more box in addition to the half dozen or so they already check off when commencing a lawsuit.

“I think as attorneys who are trying to serve our clients effectively, we should be required to advise them of the alternative of going through mediation,” he said. “I think the advantage is that you make the attorney report that he has explained to a client that there is another way to go forward. My belief is that most lawyers are aware of this alternative and they do discuss it with their clients to some extent.”

Moore doesn’t see any disadvantages to the proposal. He said it simply requires attorneys to advise clients of the option and is not a requirement to mediate.

Moore is a past president of the NYSBA and previous chair of the Dispute Resolution Section. He remains active as a mediator and arbitrator.

Moore was president 11 years ago when current President Stephen P. Younger led an ADR committee that issued a report called “Bringing ADR into the New Millennium — Report on the Current Status and Future Direction of ADR in New York,” later dubbed the “Younger Committee Report.”

The Younger Report built on the 1996 report of then Chief Judge Judith S. Kaye’s Task Force on Alternative Dispute Resolution.

Since the two reports were issued, there have been numerous continuing legal education courses and training programs dedicated to ADR, many focusing on mediation; and the addition of negotiation and mediation courses in law schools where there had been none just 25 years earlier.

The proposed resolution contains two amendments — the first adds a reference to mediation in the “Statement of Clients Rights” that attorneys in New York state are required to post in their offices and the second adds a requirement that attorneys deliver a “Notice of Mediation Alternative” to their clients in any matter involving a lawsuit or potential lawsuit.

“The purpose of the proposed amendments is to assist attorneys in discharging what some believe is an evolving duty that attorneys may have to their clients to make them aware that mediation is available as a possible alternative to litigation,” the new report says. “The Notice of Mediation was designed to explain the mediation process in simple terms so the client, with the advice of counsel, can decide whether or not to seek or agree to mediation.”