On May 14, 2019, New York State Chief Judge Janet DiFiore announced “a transformational move to advance the delivery and quality of civil justice in New York as part of [her] Excellence Initiative.” Presumptive Alternative Dispute Resolution (Presumptive ADR) mandates — aside from appropriate exceptions — that parties in civil cases, at every level throughout the state, “will be referred to mediation or some other form of alternative dispute resolution as the first step in the case proceeding in court.” This will widely expand the use of mediation in state courts.
Presumptive ADR, which in many cases will mean mediation, will bring a sea change in the way cases are litigated in New York State. Gone will be the days when submitting a case to mediation will depend on the whims of the parties or attorneys, or the judge to whom a case is assigned; or be determined based on the type of case, such as a contract dispute, and the court or jurisdiction in which it is pending. Gone, too, will be the excuses or gamesmanship employed by some by not agreeing to go to mediation out of fear of looking weak; of appearing too anxious to settle. Like it or not, you will be sent early on to mediation.
For the parties, this is a great change! Statistics show that well over 90% of all cases nationwide are resolved short of trial, either by decision on a motion or settlement. The sooner a settlement is reached, the fewer burdens the parties will have to bear. Mediation will provide an opportunity, early on in the case, for the parties to settle all or some of the claims — or at least narrow the issues. By having mediation early on, parties can save a great deal of time, money and aggravation.
Of course, all cases may not be suitable for early mediation. In some cases, mediation may make more sense if it occurs after the parties have engaged in significant discovery or received an Order from the court addressing substantive claims. Presumptive ADR does not mean that a party has to settle, or give up her right to proceed to trial; some cases simply cannot be settled. However, given the costs of litigation in both time and money for the parties — and the substantial caseloads of many courts (which oftentimes result in substantial delays for a motion to be decided or a case to go to trial) — the new program provides a great opportunity to resolve many disputes expeditiously.
I have talked previously, in many blog articles, about how parties can best take advantage of mediation and, most recently, different ways in which “success” can be defined. A suggestion: now that you know that you will, in all likelihood go to early mediation, speak with your attorney about how she intends to present the case in mediation. Remember, mediation and litigation are different; the goal in mediation is to settle, whereas the goal in litigation is to win, whether on motion or at trial.
While many of the skills that an attorney brings to mediation and litigation are the same, such as being able to advance her client’s position clearly, passionately and effectively, some are different. Yes, oftentimes at the beginning of the mediation, especially in joint session, an attorney will advocate forcefully for his client and may give little credence to the position of the other side. However, once in caucus (individual parties meeting separately with the mediator), the effective attorney will explore with the mediator the strengths and weaknesses of her own case and her adversary’s case, identify her client’s needs and interests and appreciate those of the other side, and, eventually, develop options for compromise and settlement. This is different than trying to destroy the other side’s legal argument, or the credibility or reliability of a witness on cross-examination.
Separate strategies are needed for each task. The failure to develop a strategy for success at mediation can result in a significant lost opportunity and result in a party — even if ultimately successful in the litigation — to expend far more time and money to reach the end; or even to experience the unfulfilling result of “winning the battle but losing the war,” i.e., winning the case but spending almost as much, or even far more in legal fees, than the value of the case.