Encouraged by New York City’s implementation of new initiatives for presumptive Alternative Dispute Resolution (ADR), an advisory committee is exploring ways to expand ADR across the state to provide litigants efficient and cost-effective access to justice.

An Advisory Committee to expand ADR, appointed by Janet DiFiore, Chief Judge of the State of New York, highlighted last year the success rate of court-sponsored mediation programs. The Committee indicated that ADR worked best when it was automatic and took place as early as possible in the litigation process, prior to any extensive discovery. Based on the Committee’s recommendations, the state’s administrative judges began rollout and implementation of presumptive ADR in September 2019.

As part of the new presumptive ADR initiatives, in addition to existing early mediation for non-Commercial Division commercial cases, the Commercial Division ADR program and the Early Settlement Medical Malpractice program, the New York County Supreme Court – Civil has:

  • Established a Tort Advisory Committee to begin screening potential neutral evaluators to be utilized in tort cases
  • Started the process of utilizing ADR in Tax Certiorari matters involving the contesting of tax bills
  • Initiated screenings of cases for presumptive ADR in the Matrimonial part

In New York City Civil Court, in addition to the existing arbitration and mediation in small claims and the directed case conferencing modality in housing and consumer credit parts, the court has:

  • Increased partnering with volunteer mediators from the Community Dispute Resolution Centers
  • Expanded the use of Judicial Hearing Officers in conferencing and summary jury trials

Some Administrative judges have met directly with insurance carriers to determine the viability of mass settlements in the No Fault part.

Courts in other counties have also rolled out plans incorporating presumptive ADR. In Nassau County, personal injury and medical malpractice cases are being referred to court sponsored ADR at an earlier stage of litigation. In Suffolk County, a court attorney from the Suffolk County ADR Part is present at all preliminary conferences, to determine if a case is assigned to an IAS part or goes directly to the ADR part. Similarly, in Westchester County, the court is increasing the cases referred to mediation in both the Commercial and Matrimonial parts.

The judiciary continues to focus on issues that the court has encountered in its efforts to expand presumptive ADR throughout the state, including:

  • Ensuring there are enough properly trained neutral evaluators and mediators available
  • Establishing rosters of neutral evaluators and mediators reflect the diversity of the litigants they are working with, including potential language barriers
  • Structuring a compensation system when ADR is provided by someone other than court staff
  • Acknowledging the potential power disparity when one party is represented by counsel while the other is not, and determining whether ADR is appropriate in these circumstances on a case by case basis

It is important to note there are presently no statewide uniform rules for ADR.  While the Advisory Committee had initially proposed uniform rules, the Court ultimately determined that rolling out the plans developed by the Administrative Judges in each district would be more effective, taking into account that custom and practice varies in each county and district.

The Chief Judge and the New York State Judiciary are encouraged by the potential of expansion of presumptive ADR to provide litigants efficient and cost-effective access to justice, while also helping to reduce the court’s backlog of cases.  Counsel should advise litigants in civil matters throughout New York state to be aware of the concentrated effort by the Court to expand ADR. They should continue to stay abreast of the development and implementation of these programs in each county and district, to determine if utilizing the Court’s growing ADR programs may be in the best interest of their clients.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.