In light of the court systems’ ADR initiative and imminent implementation of a new “presumptive ADR” program, practitioners should be aware of the impetus behind the drive and how they can prepare for it.

It started with a Press Release in April 2018—“New ADR Initiative Aims to Reduce Case Delays and Enhance Access to Justice” (New York State, Office of Court Administration, April 20, 2018)—that memorialized a plan to revitalize the court system’s commitment to Alternative Dispute Resolution, specifically mediation. The Press Release highlighted that this new plan would promote the goals of Chief Judge Janet DiFiore’s Excellence Initiative by helping to eliminate case backlogs and enhance the quality of justice. It stressed that although ADR has proven a meaningful, efficient and cost-effective way to resolve disputes in appropriate cases, it continues to be underutilized. Launching the initiative means increasing efforts to expand the use of ADR within the courts.

The Press Release also announced the formation of an Advisory Committee on ADR that included highly esteemed and knowledgeable judges, attorneys, mediators and professors. The committee was assigned to assist and guide in the undertaking by examining the services currently accessible within the court system and to make recommendations for improvement and expansion. Also discussed in this initial Press Release was an existing New York County early mediation pilot program that followed the “presumptive ADR” model. Presumptive ADR entails referring cases, without the need of judicial intervention, to mediation or some other form of ADR as a first step, before the matter can proceed formally in court. Conversely at present, parties are typically referred to ADR services by the judge handling the matter, after some or significant court involvement has occurred.

The Advisory Committee delivered its 35-page Interim Report and Recommendations in February 2019 that was attached to another Press Release published in May 2019—“Court System to Implement Presumptive Early Alternative Dispute Resolution for Civil Cases” (New York State, Office of Court Administration, May 14, 2019). An enumerated summary of the Committee’s interim recommendations was provided as follows: (1) significantly expand statewide infrastructures for developing and supporting court-sponsored ADR (and particularly court-sponsored mediation); (2) promulgate statewide uniform court rules; (3) increase court connections with and expand funding for Community Dispute Resolution Centers (CDRCs), as a significant component of scaling up existing court-connected programs; (4) take steps to support, encourage, and educate about court-sponsored mediation; and (5) develop mechanisms for effective monitoring and evaluation of individual programs. Id. Sub-sections supplied further explanations and procedures to carry-out each recommendation. The Report was comprehensive, and the Committee was commended for its efforts by the Chief Judge in the May Release.

Notably that Press Release, alluding to the Report, announced the systemwide movement to implement presumptive ADR; to direct parties in a broad range of civil cases, aside from appropriate exceptions, to ADR methods, with a focus on court-sponsored mediation. Again, this program does not require judicial intervention for a referral to an ADR approach and acts as a first step in the case proceeding to court. Realization of the program is set to begin in September, See generally Dan M. Clark, “New York Courts to Begin Presumptive Mediation for Civil Cases Later this Year,” N.Y.L.J., May 16, 2019.

To accomplish this undertaking and in keeping with the Committee’s recommendations, a taskforce comprised of the Deputy Chief Administrative Judges, their staffs, the statewide ADR coordinator, administrative and trial court judges, and local bar associations along with other stakeholders will work together to expand the number and scope of ADR programs offered and to educate participants in the constructive use of ADR. Likewise, the Office of Court Administration will promulgate uniform rules and guidelines for the program, including processes for parties to opt out of presumptive ADR. Presumably, instructions for screening and recommending cases appropriate for the program will be published as well.

The preference, and imminent directive to employ presumptive mediation in the courts should underscore for practitioners the importance of being prepared for September’s launch. In fact, this was one of the Advisory Committee’s recommendations and goals. Preparedness entails understanding the process of mediation and its benefits. It means sharing that knowledge with clients who, considering their attorney’s counsel, can make an informed decision whether to participate in mediation, or opt out. It involves having a functional proficiency in a mediator’s role, as well as the skills they apply to promote settlement, and using this insight to the client’s best advantage. Finally, it requires attorneys who are resistant or uneasy towards the process to embrace it.

A Brief Overview

Mediation can be best described as facilitated negotiation. Negotiation is the essence of modern legal practice with a nominal percentage of actions commenced actually proceeding to trial. Mediation involves introducing an impartial individual into negotiation discussions who works as a catalyst to help others constructively address disputes and to encourage mutually agreeable outcomes or resolutions. See generally Carrie J. Menkel-Meadow, et al., Dispute Resolution, Beyond the Adversarial Model, Ch. 6-7 (2nd ed. 2011). The process itself is less formal than traditional court proceedings and generally takes place with the mediator, all parties, and their attorneys situated around a conference room table engaging in open dialogue. A mediator may also choose to employ the caucus, or a method of mediation dubbed “shuttle diplomacy.” Attorneys are named as participants given the context of court-sponsored presumptive ADR, and as it remains to be seen if pro se litigants will be required to participate.

Mediation has as its hallmarks and benefits self-determination, durability, universality and, frequently, confidentiality. Mediation is consensual. It is driven by the parties who maintain control over the process, as well as the outcome. This self-determinative aspect, rather than ceding power to a judge or jury, means that the parties are invested in both the process and its conclusion. They participate in conversations affording them the opportunity to express themselves candidly, to be heard and to hear each other. Doing so effectively tempers unrealistic positions, unwarranted assumptions and demonization. The parties’ active role provides them the chance to find and choose among potential solutions, as well as the possibility of crafting their own settlements. Autonomy in this way mitigates the risks of adjudication and infuses the process with a level of predictability not shared by litigation. Self-determination as all-encompassing leads to the reliability and durability of agreements reached, as opposed to decisions, judgments or verdicts strictly imposed.

The universality of mediation connotes its ability to hear and undertake the totality of a dispute and all its potential outcomes. Parties do not have to fit their conflict into a narrow frame of a legal “cause of action.” They are not constrained to deal with only legal issues and are free to touch upon the emotional underpinnings that often act as an invisible barrier to conciliation. They also are not subject to a binary finding of right and wrong, or only to remedies germane to the law and litigation. Given that the process enhances communication, fosters collaboration and encourages creative problem-solving, parties can seek emotional, practical and psychological closure. Parties even have the opportunity to devise methods for handling and preventing future disputes.

Mediation is ordinarily more economical than litigation. It is a faster and less expensive process. Sessions can be scheduled quickly and at the convenience of the parties. It does not incur the normal and anticipated court costs associated with litigation, discovery and motion practice.

In the event a case is referred to presumptive mediation and a resolution is not reached, the process does not have to be viewed as a failure or wasteful. A mediation can be considered successful if the parties gain a better understanding of their dispute, and each other’s positions and perspectives relative thereto. Progress is also achieved if the parties gain insight into the strengths and weaknesses of their case. The hallmarks and benefits of mediation discussed above speak to this success. Apropos the court system, a mediation may not settle the entire matter, but may help to clear emotions underlying a conflict that act as an impediment to settlement and to narrow the issues brought before the court.

The mediator is responsible to set the stage, foster and focus communication and maintain the process’ hallmarks and benefits. The meditator is an organizer, a motivator and facilitator, an educator, an impartial negotiator and a protector. Paramount to the mediator’s function is their neutrality. It is that neutrality that informs the mediator’s actions and decisions relative to the process. A mediator is absolutely not a decision-maker.

The mediator as organizer oversees all aspects of the process, from the most fundamental as the arrangement of the meeting room and participants, to the most crucial of setting the discussion agenda. Arguably the most significant of the mediator’s functions is that of communication motivator and facilitator, and neutral negotiator. This means a mediator helps parties to speak clearly and to listen and understand each other. The mediator does this by summarizing, explaining and translating employing the tools of reflecting, reframing and looping, which are all approaches to “active listening.” By going beyond hostile dialogue and extracting “building blocks” a mediator: (1) elicits common interests; (2) frames open issues in an unbiased way; (3) culls shared proposals for resolutions; (4) acknowledges feelings and goals; and (5) explores the parties’ alternatives while evaluating the strengths and weaknesses of those options. This role also includes the task of capturing and recording understandings that will lead to the terms of an agreement. The mediator as motivator, facilitator and negotiator leads in subtle ways so parties believe that they have achieved their own results. A mediator is also an educator, both about the process and in reality testing agreements reached. Reality testing involves determining if settlement terms reached are prudent, rational, reasonable and workable. Finally, a mediator is a protector acting as sentinel and steward of the process, as well as referee ensuring equality at the table.

It is important for practitioners to familiarize themselves with these functions and the tools and skills mediators use to carry them out, so that they may use that familiarity to their client’s advantage, maximizing all that mediation has to offer. Tantamount to practitioners who will represent clients in this process is an attitude and perspective shift, a new orientation different from that of an attorney representing a client in litigation. This involves letting go of the idea that parties are strictly adversaries, that the attorney acts only as zealous advocate and that disputes may only be resolved by a judge or jury’s application of the law to the facts. It requires attorneys to look beyond the binary concept of winner and loser, to become more sensitive and creative and to adopt a more global view of the conflict. Attorneys must embrace their role as innovative problem-solver. Clients too need to be re-orientated to this perspective by the attorney representatives, who can frame the process in terms of a voluntary compromise, a “win-win” possibility.

Another adjustment necessary for attorney representatives not found in litigation, is to plan for their clients’ active participation in the process. They must allow for this unfamiliar aspect and discuss how that can be accomplished. Clients should understand the mediation process and the mediator’s function. Clients, and their attorneys, should be prepared to tell a full detailed account of the dispute inclusive of the feelings rooted therein, and to actively listen to the other side’s similar presentation. They need to be informed of the broad range of settlement options and to research those outcomes to decide which satisfy their goals and are acceptable.

Common mistakes for attorneys to avoid are failing to understand the clients’ interests and objectives, addressing the mediator as opposed to the other side, balking at emotions and relationships, losing patience with the process, resorting to adversarial and threatening tactics and failing to truly seek settlement and close. See Tom Arnold, “Common Errors in Mediation Advocacy,” 13 Alternatives 69, 69-71 (1995); see also Harold I. Abramson, Mediation Representation, Advocating as a Problem-Solver, In Any Country or Culture (2nd ed. 2010).

ADR, specifically mediation, is a discipline that, although not new, has become an objective for the court system to endorse, encourage and utilize more frequently in pursuit of speedier and superior justice. It is no longer the future’s wave. It is the present. The implementation of “presumptive ADR” in a wide range of civil cases starting this September makes that evident. Practitioners should prepare themselves for this reality by educating themselves about the process of mediation—its benefits, utility and efficiency—so that they may pass this information along to their clients, who may then decide whether to take advantage of this process, or not. Also, that they may represent and advocate for their clients within the context of mediation in an enhanced and productive capacity. In short, presumptive ADR is coming and we should all be prepared.

Claudia Lanzetta is a Principal Law Secretary who received her LL.M. from Benjamin N. Cardozo School of Law in May 2018 in Alternative Dispute Resolution and Advocacy.