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Federal alternative dispute resolution coming to town

William M. Skretny

A pilot alternative dispute resolution program in Western New York federal courts will be expanding into the Rochester area.

The program, started by Chief Judge William M. Skretny before he was chief judge, has been running in the Buffalo region of the 17-county U.S. District Court for the Western District of New York since Jan. 1, 2006.

It is designed to help speed up the litigation process in most civil cases, save time and money, and relieve some congestion in a district with one of the heaviest caseloads in the nation.

“I think the program will be an extraordinary positive for Rochester,” Judge Skretny said. “We’ve had a number of inquiries from the attorneys for the expansion to the Rochester area.”

The ADR plan, implemented in 2006 and slightly revised this past June, calls for most civil cases to automatically be referred to mediation upon filing, something unique in the district’s program.

Barry L. Radlin

ADR Program Administrator Barry L. Radlin, who was hired in June, said few ADR programs have automatic referrals at the beginning of the litigation process. Other unique features of the Western New York program include applying it every civil case, with nine specific exemptions; compensating attorneys; and the quality of the mediators.

After litigation is filed, parties will select a mediator from a list and a mediation conference of at least two hours will be scheduled. A mediator, according to the Federal Judicial Center, may work to improve communication, help clarify interests, assess cases and help come up with resolution options.

Radlin said it can save years. He said early intervention gives parties an early opportunity to settle which will save parties money. It also helps unclog the congested courts.

“Alternative dispute resolution has grown,” Radlin said. “It used to be considered a distant cousin to the litigation process. It improved to the point of being a second cousin, so to speak. We feel, both out of success and out of necessity, that it is moving up in the family relationship to be a true partner in the resolution of civil litigation.”

Judge Skretny said the litigation culture is more open now to try creative resolutions. The ADR process will run simultaneously with regular civil case deadlines so if mediation is unsuccessful, the dispute may proceed in the traditional manner.

Radlin said more than 70 percent of the cases referred to mediation are settled in the mediation process. Parties may apply to opt out of the program and assigned judges may exempt any cases.

Radlin is the primary mediator who works with the judges and oversees the program. He also handles all prisoner civil rights actions, one of the nine exemptions. The other exemptions are habeas corpus and extraordinary writs, Social Security and bankruptcy appeals (bankruptcies are handled in a separate bankruptcy court); cases implicating public policy issues; IRS summons enforcement actions; government foreclosure actions; and civil asset forfeiture actions.

Radlin said, based on 2010 figures, each judge is assigned about 850 to 900 civil cases a year. He said there are 450 to 500 prisoner civil rights cases pending currently pending in the Western District of New York, of which almost 200 are more than three years old.

The program does not include criminal cases, which Radlin said need to be addressed swiftly to meet constitutional requirements such as a right to a speedy trial.

There are other alternative dispute resolutions available, such as arbitration, early neutral evaluation and summary jury trials, but Radlin said mediation is the preferred method.

The Rochester panel will consist of about two dozen attorneys. The plan is to send invitation letters to a prospective pool of about 60 candidates.

“We are very selective when it comes to the selection and training of our mediators,” Judge Skretny said. “We have a program that involves a very modest compensation for the mediators, but we also require that they do a pro bono component for those litigators who cannot afford to pay anything at all.”

Radlin said the fee is another unique element of the district’s ADR program. Mediators, according to the plan, may be attorneys or non-attorneys with relevant experience. All must successfully complete initial and periodic training and have a minimum of 20 certified hours of ADR training. CLE credits are available.

The letters, expected to be sent out any day, will invite prospective mediators to an informational session with the five Rochester judges who have committed to the program. Those selected from returned applications will be trained, at their own expense. Radlin expects it will take a few months before everything is in place to implement the ADR program in Rochester. He will work out of both district offices.

Radlin, a graduate of Cornell Law School who lives in Erie County, was among the first class of 24 mediators selected. He supervises the panel of mediators. He had been a mediator for many years in state and federal courts and has worked in private practice in Buffalo and for state government.

Judge Skretny said Radlin is “an excellent choice” to make the program work the way its envisioned to benefit the Rochester community.

“He’s a very experienced litigator,” he said. “He is familiar with the Rochester community. What he has is a profound appreciation for the role of mediation in the federal litigation process.”

A second class of mediators was later added bringing the total, with some attrition, to 40 certified federal court mediators.

Each federal district was required to provide at least one form of alternative dispute resolution to litigants in civil cases under the Alternative Dispute Resolution Act of 1998.

Judge Skretny said the Western District of New York started looking at dispute resolution alternatives earlier; following “a very successful settlement undertaking” in Buffalo in 1995.

“We knew we needed the help of practicing attorneys,” he said. “They were willing to do that and jumped on board. We looked at not only state and federal mediation programs in successful districts, but programs that didn’t make it. We tried to pick out the best aspects that would fit the Rochester and Buffalo legal culture. We think we did that.”

It took years of evaluation and planning that came together in 2005 when the district court issued its order and accompanying plan which went into effect as a one-year pilot beginning Jan. 1, 2006. Initially, only Judge Skretny’s calendar was included in the pilot model.

“Judges had been given the option of participating,” Radlin said. “Up to now, it has been weighted heavily in the Buffalo division and has not been regularly implemented in the Rochester division.”

He has been working with the federal judges in Rochester. Prior to the U.S. Courts authorizing the hiring of an administrator, Radlin said the program was overseen by Judy Hernandez, “an exceptionally able attorney” on Judge Skretny’s staff.

The pilot was extended on an annual basis in each subsequent year until 2010 when it was extended indefinitely, based on its success in Buffalo which gained national attention. Radlin said the Judicial Conference recognized the need for the program and expanding it by authoring funding for his position.

“The judges are cautiously optimistic that the expanded program in Rochester will be very successful,” Judge Skretny said. “I think it’s very very important that this program succeed. It’s partially because the judges need assistance. I firmly believe it’s the best alternative opportunity that litigants have to bring their cases to quicker resolution and in a less expensive framework.”