Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 1)

Last week, I wrote about “presumptive alternative dispute resolution,” which New York will be introducing (and expanding) throughout the state.  Primarily, I addressed mediation in that post. Here I want to continue on the topic of Presumptive Alternative Dispute Resolution (ADR), because the changes will be so significant and far reaching for New Yorkers.

But first, what is ADR?

“Alternative Dispute Resolution” refers to ways of managing and settling disputes without litigating them.  Because litigation is the way that so many conflicts have been (and continue to be) handled, other manners of dealing with disputes have been labeled as “alternative” methods.  The term – which includes the processes of mediation, arbitration, neutral evaluation and others – has not always been used with respect by some members of the legal community.  Nevertheless, ADR is set to become much more prominent in New York over the coming months and years.

The further adoption of ADR in the State, which will allow many parties to save time and money, is long overdue.  In the case of mediation especially, parties will have more control over the outcomes of their cases and suffer less stress.  Relationships that are so often badly damaged or destroyed during litigation (think divorce, for example) are significantly more likely to remain respectful and functional during and after mediation, which encourages disputants to share their stories, listen to each other and mutually agree on how to move forward.

A Statewide ADR Advisory Committee has issued an Interim Report and Recommendations.  Here are a few of the highlights:

  • There will be “increased training and education about court-sponsored mediation for judges, judicial administrators, court staff, advocates, parties, mediators, and the general public”;
  • Rules requiring “attorneys to become familiar with mediation and other processes, to discuss with clients both mediation and other potential alternatives to conventional litigation and to discuss ADR options with opposing counsel in good faith” will be promulgated.  [In the past, many (but by no means all) litigators have not informed potential clients about mediation and other ways to handle disputes.  If a client raises the idea of mediation, some litigators will speak of the process in disparaging terms.  Back in 2015, I shared my thinking that lawyers who failed to inform clients about mediation were committing an ethical violation of their professional obligations:                                                                                                                                                                                                                                           According to Section B of Rule 1.4 of the New York Rules of Professional Conduct, entitled “Communication,” a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representa­tion.”                                                                                                                                                                                                                                                  Is it ‘reasonably necessary’ for a divorce lawyer to tell a potential client that there is another way to get a divorce without litigating in court? I think so — if that client is to know enough to make an informed decision regarding the representation.                                                                                                                                                                                                                                                It will be interesting to see how willingly attorneys deal with this responsibility in the future.]
  • Engage with and reach out to the legal community and law students concerning early mediation and other forms of ADR.  [Teaching law students, who are generally young and who of course will first be beginning their legal careers, more about ADR should go a long way toward changing our litigious culture over time.]                                                                                                                                The Interim Report has much more to say.  I expect to continue discussing it next week.

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