Lawrence Marks, chief administrative judge of the state of New York, testifies before the commission on Oct. 16, 2017.

 

A new state Supreme Court Commercial Division rule requiring counsel to discuss alternative dispute resolution with their clients before the preliminary conference and before each subsequent conference is set to go into effect next year.

Chief Administrative Judge Lawrence Marks has signed into effect language that will be added to Commercial Division Rule 10. Rule 10, titled “Submission of Information,” specifies what counsel must furnish at the preliminary conferences during litigation.

The Rule 10 amendment, titled “Certification Relating to Alternative Dispute Resolution,” states in part that “counsel for each party shall also submit to the court at the preliminary conference and each subsequent compliance or status conference … a statement … certifying that counsel has discussed with the party the availability of alternative dispute resolution mechanisms … and stating whether the party is presently willing to pursue mediation at some point during the litigation.”

The amendment was proposed by the advisory council of the Commercial Division and adopted, after public comment, by the state court system's Administrative Board. It is to go into effect Jan. 1, 2018.

On the same date, a related amendment to Rule 11, titled “Discovery,” proposed by the council and signed by Marks, also is to take effect.

Rule 11 states that preliminary conference orders, where appropriate, should give information related to early disposition of a case. Under the new language, a preliminary conference order will now also give a date for identifying a mediator.

The new Rule 11 language states in part that the order will “include[]  in all cases in which the parties certify their willingness to pursue mediation pursuant to Rule  10, provision of a specific date by which a mediator shall be identified by the parties for assistance with resolution of the action.”

Mark Zauderer, a senior partner at litigation boutique Flemming Zulack Williamson Zauderer and advisory council member, said the new language in both rules will help encourage increased mediating of disputes by taking certain pressures off of litigators.

“In the views of corporate clients, mediation has assumed increasing importance as a dispute resolution method,” he said by phone. “But one of the impediments is that lawyers are sometimes reticent about suggesting mediation to their adversaries, for fear of being viewed as lacking confidence in their position.

“With this amendment, the onus is taken off the back of the lawyer,” Zauderer said, “because the lawyer is required to give the client an opportunity directly to suggest or reject mediation.

“It makes sure that what gets communicated is the client's desire for mediation, not the lawyer's,” he added.

Marks signed the rule amendments last week.

Lawrence Marks, chief administrative judge of the state of New York, testifies before the commission on Oct. 16, 2017.

 

A new state Supreme Court Commercial Division rule requiring counsel to discuss alternative dispute resolution with their clients before the preliminary conference and before each subsequent conference is set to go into effect next year.

Chief Administrative Judge Lawrence Marks has signed into effect language that will be added to Commercial Division Rule 10. Rule 10, titled “Submission of Information,” specifies what counsel must furnish at the preliminary conferences during litigation.

The Rule 10 amendment, titled “Certification Relating to Alternative Dispute Resolution,” states in part that “counsel for each party shall also submit to the court at the preliminary conference and each subsequent compliance or status conference … a statement … certifying that counsel has discussed with the party the availability of alternative dispute resolution mechanisms … and stating whether the party is presently willing to pursue mediation at some point during the litigation.”

The amendment was proposed by the advisory council of the Commercial Division and adopted, after public comment, by the state court system's Administrative Board. It is to go into effect Jan. 1, 2018.

On the same date, a related amendment to Rule 11, titled “Discovery,” proposed by the council and signed by Marks, also is to take effect.

Rule 11 states that preliminary conference orders, where appropriate, should give information related to early disposition of a case. Under the new language, a preliminary conference order will now also give a date for identifying a mediator.

The new Rule 11 language states in part that the order will “include[]  in all cases in which the parties certify their willingness to pursue mediation pursuant to Rule  10, provision of a specific date by which a mediator shall be identified by the parties for assistance with resolution of the action.”

Mark Zauderer, a senior partner at litigation boutique Flemming Zulack Williamson Zauderer and advisory council member, said the new language in both rules will help encourage increased mediating of disputes by taking certain pressures off of litigators.

“In the views of corporate clients, mediation has assumed increasing importance as a dispute resolution method,” he said by phone. “But one of the impediments is that lawyers are sometimes reticent about suggesting mediation to their adversaries, for fear of being viewed as lacking confidence in their position.

“With this amendment, the onus is taken off the back of the lawyer,” Zauderer said, “because the lawyer is required to give the client an opportunity directly to suggest or reject mediation.

“It makes sure that what gets communicated is the client's desire for mediation, not the lawyer's,” he added.

Marks signed the rule amendments last week.