By Alexander Zedlovich
In May of 2019, Janet DiFiore, a St. John’s law graduate and Chief Judge of the New York Court of Appeals, announced an initiative for presumptive early alternative dispute resolution (“ADR”) in an effort to boost efficiency in resolving civil cases within the state. Recognizing that parties settle more often than not, the plan aims to promote settlement by referring parties in particular civil cases to mediation as a primary step in their lawsuit’s progression through the court system. The plan serves a dual function of limiting the cost of litigation for parties while also reducing the strain on an overburdened court system. While the program is still in its initial stages, the COVID-19 pandemic has accelerated its recognition within the legal field. Law students should familiarize themselves with ADR processes to adapt to this changing landscape.
Chief Judge DiFiore began her legal career at St. John’s School of Law, graduating in 1981 and bouncing between the Westchester District Attorney’s office and the bench until 2016, when Governor Cuomo appointed her Chief Judge of the Court of Appeals. Upon her appointment, Chief Judge DiFiore wasted no time in announcing her “Excellence Initiative,” aimed at providing the level of justice expected by over 19 million New Yorkers and the countless visitors the state’s court system serves.
One goal of the “Excellence Initiative” was to evaluate court processes and procedures and determine where improvements could be made. Traditionally, parties would only be referred to ADR by a judge after substantial court involvement had occurred. To promote faster and less expensive outcomes, the “Excellence Initiative” incorporated early stage presumptive ADR last year. The program also increases the parties’ involvement in resolving their disputes, part of a greater movement of enhancing perceptions of procedural justice by enabling parties to have their feelings and experiences understood.
Despite the availability of multiple ADR processes, the initiative focuses on mediation. The mediation process is essentially a negotiation assisted by a neutral third party, called a mediator, who helps the parties find mutually acceptable solutions to disputed issues. Mediation can lead to upfront settlements and the narrowing of disputed issues that must advance to litigation.
Significantly, mediation is a party directed process, in that the mediator does not adjudicate the issues at hand, but instead guides the parties themselves towards agreement. To do so, mediators facilitate information gathering, make sure all parties’ concerns are addressed, help the parties assess their choices realistically, and help the parties analyze settlement offers. The mediator can also relay offers from one party to the other, limiting “reactive devaluation,” a phenomenon in which a party will dismiss an opponent’s offer without thorough consideration simply as a reaction to the identity of the offeror. If mediation fails, the case is referred back to the courts, but the parties will undoubtedly have a better sense of the dispute and the strengths and weaknesses of their case.
The COVID-19 pandemic struck when the presumptive ADR program was in its infancy, and the courts were closed to all but emergency matters. Unlike other legal proceedings, ADR processes, and specifically mediation, were incredibly adept at transitioning to a virtual setting due to their informal nature and the fact that online ADR was gaining traction prior to the pandemic. In May, administrative order 87‑20 authorized judges to refer matters to virtual dispute resolution.
Since COVID-19 only exacerbated the Court system’s backlog, both judges and litigants have been eyeing ADR as a solution to their problems. Judges view the process as a way to reduce their caseload, while parties see it as their best chance to resolve pending issues quickly and without having to risk their health by in-person meetings. These realities have boosted acceptance of presumptive ADR, and while nobody can tell what courtrooms will look like after the pandemic, it is likely that virtual ADR is here to stay.
To prepare for presumptive ADR in future litigation, law students should adjust their advocacy strategies for mediation. Primarily, one must realize that mediation is collaborative rather than adversarial. In traditional litigation, each side hopes to persuade a judge and jury to decide in its favor. In mediation, the goal is to work with the opposition towards resolution. The mediator is simply there to facilitate such a resolution. A good mediation advocate will also understand the role of the mediator and use the mediator effectively in that role. Attempting to convince the mediator that one side is right and the other is wrong is a waste a time, as resolution ultimately hinges on the parties themselves.
Moreover, clients will actively participate in the ADR process and should be prepared accordingly. Since both sides are allowed to be heard, trying to dissuade clients from showing or expressing their emotions can be a tactical error.
If presumptive ADR is here to stay, law students should welcome it. Graduates will be able to engage in mediation in the early stages of its development, reducing the competitive advantage that more experienced attorneys have over them in other proceedings. The process is also less formal than litigation and allows advocates to find creative solutions to problems that could never be achieved in the courtroom, in many cases producing more just results. Finally, in the virtual setting, no one has more experience with online meetings than current law students. While presumptive ADR in New York State will undoubtedly change the role that some attorneys will be playing in their careers, it also presents a good opportunity for current law students to familiarize themselves with an emerging process and get ahead of the curve.