In recent weeks, I have been discussing New York State’s plans for introducing and expanding alternative dispute resolution (ADR) programs. I have talked about the judiciary’s press release, and an Interim Report and Recommendations that have been submitted. See:
Today, I would like to mention and give definitions of two ADR processes that many New Yorkers may be unaware of: Early Neutral Evaluation and Mini-trial.
Early Neutral Evaluations
On the American Bar Association’s website, it says:
- Early neutral evaluation is a process that may take place soon after a case has been filed in court. The case is referred to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute. The parties either submit written comments or meet in person with the expert. The expert identifies each side’s strengths and weaknesses and provides an evaluation of the likely outcome of a trial. This evaluation can assist the parties in assessing their case and may propel them towards a settlement.
Also as set out on the American Bar Association website:
- A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a trial. The presentations are observed by a neutral advisor and by representatives (usually high-level business executives) from each side who have authority to settle the dispute. At the end of the presentations, the representatives attempt to settle the dispute. If the representatives fail to settle the dispute, the neutral advisor, at the request of the parties, may serve as a mediator or may issue a non-binding opinion as to the likely outcome in court.
If you file a lawsuit, can you expect to engage in either a mini-trial, or to have the case handed to an early neutral evaluator? The answer depends on at least two factors.
- The timeframe: As I’ve discussed, New York State will be expanding successful existing ADR programs, and instituting others. But New York is a big place. In many parts of the State, it will be months, and maybe years, before ADR programs are fully up and running. If you bring a case (or have one brought against you) tomorrow, you may or may not be told that your case should be handled – at least initially – through an ADR process. But a year from today – and more so two and three years from today – the likelihood of your case being dealt with through an ADR process should increase greatly. It is possible that in the meantime, parties can request to engage in ADR, and depending on the resources of the courts, the request will be followed. If the parties were to agree that they wanted to try mediation – discussed elsewhere in many of my articles, on my blog) and on my website generally – and if they were agreed on a private mediator to use for the process, many judges are willing to allow the mediation – but of course, the court’s permission should be sought, and your lawyer’s advice, if you have an attorney.
- The type of case: The greater use of ADR will mostly be seen in civil cases, as opposed to criminal cases. Civil cases primarily dealing with money are more likely to go to an early neutral evaluator or to a mini-trial than other cases. At a recent meeting I attended on “presumptive ADR” the following example was given. Paraphrasing, it went like this:
Suppose someone breaks an arm, and a personal injury case is begun. There have been many such cases, and the cases have evidence from doctors on the extent of the damage done. Everybody in the process – the judge, the attorneys for the parties, and the parties themselves (after being informed by their lawyers) knows how much the ultimate award for the broken arm will be. They know this even before the case begins.
Such a case is probably a good candidate for early neutral evaluation (or, I would think a mini-trial).
The final result of having an early neutral evaluator handling the case, and a negotiated settlement based on the evaluator’s findings, is likely to be the same or similar to what would happen if the case were litigated over a period of years. The time and money saved by the parties will probably be very substantial. The lessened burden on the parties and on the court will also be significant.
Contrast the above “broken arm” (personal injury) case to a divorce case. While divorce cases, especially ones involving children, often have very significant financial aspects to them (division of property, spousal maintenance a.k.a. alimony, child support), divorces are largely about relationships – the relationships between the spouses, and between the parents and each child.
(To be sure, a personal injury case is often emotional as well. However, usually the relationship is secondary or nonexistent. For instance, if I slip and fall on a sidewalk, I probably don’t have any relationship with the home or business owner who is responsible for clearing the sidewalk.)
A divorce case, or a family case, is far different from a personal injury case. Divorce and family cases tend to defy one size solutions that fit all couples or families – as opposed to the broken arm case where the ‘value’ of the injury can be pretty well determined.
Divorce and family cases often benefit from the parties working together to create solutions that serve everyone involved. For such cases, we can expect mediation to be the ‘go-to’ process, rather than early neutral evaluation, or even a mini-trial. This blog is for information purposes and does not constitute legal advice. Please consider speaking with an attorney about any case you have or are considering bringing.