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State courts moving to presumptive ADR

Limited programs already used in some courts

By: Bennett Loudon//July 26, 2019

State courts moving to presumptive ADR

Limited programs already used in some courts

By: Bennett Loudon//July 26, 2019//

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Janet DiFiore
New York State Chief Judge Janet DiFiore

Preliminary plans were due earlier this month for implementing a program aimed at avoiding litigation and settling most civil cases outside court in the Seventh Judicial District.

In her annual State of the Judiciary address in February, New York State Chief Judge Janet DiFiore announced plans to develop a system where parties would first try to settle civil disputes outside the courtroom, through alternative dispute resolution (ADR), such as mediators or other tools.

“Court-sponsored ADR should be a significant component of the judiciary’s approach to resolving disputes,” according to a report from an advisory committee appointed by DiFiore to study the issue.

“The cost of litigating to a final judgment often represents such a high percentage of the amount in controversy that the parties find litigating to a final judicial decision is unaffordable,” the committee wrote in the report.

“In addition, settlements reached only after parties have litigated for extended periods beg the question whether effective earlier discussions could have yielded a less expensive resolution. Alternatives to conventional litigation undeniably help parties resolve their disputes more quickly and less expensively,” according to the report.

The 32-page report called for a significant statewide expansion of the infrastructure necessary to support court-sponsored ADR, mediation in particular.

“There will be a greater need for increased training and education about court-sponsored mediation for judges, judicial administrators, court staff, advocates, parties, mediators, and the general public,” the committee wrote in the report.

The report also called for the adoption of pertinent rules and mechanisms for monitoring ADR programs.

State Supreme Court Justice Craig J. Doran, administrative judge for the Seventh Judicial District, an

Hon. Craig J. Doran
Hon. Craig J. Doran

eight-county region that includes Rochester and Monroe County, created a 30-member committee to develop a plan to implement DiFiore’s initiative.

The committee includes a geographically diverse group of representatives from all courts, including judges, court employees and attorneys. Committee members also serve on working groups for the various courts, and those groups were expected to submit, by July 19, preliminary plans for implementing alternative dispute resolution programs.

The plans were expected to address questions such as: how resources would be deployed, if available; how the program could be implemented without additional resources; how cases would be screened; who will do the screening; and how conduct the actual ADR.

Doran said Sept. 1 is the target date to have a substantial plan in place with operating pilot programs, but “it’s not all going to happen at once.”

“We will certainly have to phase things in and some of it will be fluid, some of it will be trial and error,” Doran said.

He said it’s likely that changes will need to be made as the program is implemented.

“We want to constantly be listening for suggestions from the public, from the private bar, from our own staff, from the attorneys,” he said.

“This won’t happen suddenly, and it won’t be embedded in stone. We’re going to have to be willing to make changes as we go,” he said.

The effort will include staff training in alternatives to litigation, which will not always be mediation.

For example, in custody petitions in family court, there might already be personnel in the courthouse, such as a court attorney referee, or another employee who could work with the parties to narrow the issues in their dispute without a lengthy mediation session, Doran said.

“Part of what I’ve asked this working group to do is identify where we can make better use of the expertise we have in house,” Doran said.

The Seventh Judicial District already has a full-time mediator —Adrian J. Burke — who has been in the position since May 2016. About 85 percent of his caseload is personal injury suits, usually with a settlement under six figures.

Judges prescreen cases for Burke and only refer lawsuits they feel are suitable for mediation at no cost. In a typical year, Burke mediates about 180 to 200 cases and settles about 80 percent of them.

“We’ve got a very successful mediation program going on, but we’re ready to see if we can get more cases funneled towards ADR. We have limitations in terms of the resources that we have, but we’re going to do the best we can to achieve the goals of the chief judge,” said Burke, who was appointed by Doran as a member of the committee.

Burke said he expects judges will be very involved in the process of vetting cases that are appropriate for mediation, or they may mediate cases themselves or have law clerks mediate cases.

Doran said the new initiative to use ADR in all civil cases might include adding more personnel to expand the type of work that Burke is already doing.

“That’ll be a piece of our plan, but not every civil case needs Adrian Burke,” Doran said. “Some cases might be less complex, they might be earlier on in the process.”

In another alternative to litigation effort, state Court of Claims Judge Debra A. Martin is leading a pilot program in the use of restorative justice practices to resolve civil cases.

“That, in my view, is very promising,” Doran said.

One of the common criticisms of imposing mandatory ADR in the early stages of a civil case is that both sides don’t have enough information to make a decision on a possible settlement.

“I imagine that the group that’s considering putting together the plan for civil Supreme Court cases will probably make suggestions as to when ADR is most appropriate,” Doran said.

But even in cases where settlement talks are not feasible, other issues can be resolved, he said. For example, lots of potential motion practice can be avoided and a discovery plan can be developed without time-consuming, expensive legal filings and court sessions.

“A lot of this can be done with somebody who’s trained in identifying where the issues are early on,”

The Seventh Judicial District has implemented a program that requires parties in matrimonial cases to meet with a mediator at least once at no cost.

And the District, in partnership with the Center for Dispute Settlement, also has a successful ADR program in place for custody/visitation petitions in Family Court. But the capacity of that program is limited.

“Essentially, we’re already doing, and have been for a number of years, in the custody visitation cases in Family Court, what the chief judge is proposing we do across the board with all civil cases,” Doran said.

In some counties, the mediations have a success rate of 70 percent.

“The parties never have to step foot in a courtroom,” Doran said. “The mediator works out an agreement, sends it over with a court order, and in most counties the judge will sign the order and the folks get their agreement with an order without ever having to come to court, which is very user friendly.”

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