Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 2)

Last week, I began writing about New York State’s “Interim Report and Recommendations (Report)” regarding “Presumptive Alternative Dispute Resolution (ADR).”  Here, I will continue to discuss the Report further.  New York plans on greatly expanding existing mediation and other programs and initiating new ones.  The programs will deal with many types of ‘civil’ cases, from small claims to personal injury to matrimonial and more.

In part, the move toward the far greater use of mediation, arbitration, and early-neutral evaluation – some of the ‘alternative’ methods of resolving conflicts, as opposed to litigation – is the recognition of serious problems with the status quo.  For instance, many courts have long backlogs of cases.  (In one county, and maybe more, a year can pass between the time a separation agreement for a divorce is filed with the court, and when a judge signs it.)

Cases often take months – and not uncommonly years of litigation; such long delays mean at the very least a delay of justice.  Arguably, and in more than a few instances, such lengthy delays can result in the denial of any real justice at all, as the parties involved would define it.

A significant problem that has some correlation to the years of motions and trial practice that so many litigants face is the cost of bringing or defending an action.  The Report states that:

  • The cost of litigating to a final judgment often represents such a high percentage of the amount in controversy that the parties find litigating to a final judicial decision is unaffordable.

What does this mean to parties?

For some, the high costs of litigation mean that a party will essentially give in to the other side at some point, after realizing that they don’t have the resources to continue battling.  For many others, the prospect of incurring bills amounting to five or six figures results in choosing not to bring or defend a case at all.  In these instances, justice may have nothing to do with the calculation.  Sadly, far too many New Yorkers simply can’t afford justice, and so do not receive it.

The Report notes that:

  • New York and other courts have long administered or sponsored efforts to promote more streamlined achievement of final decisions or negotiated settlements, including: (1) a wide variety of court conferencing processes led by judges or court personnel; (2) referrals of disputes to dedicated court staff neutrals; (3) organization of “settlement days” in which courts try to resolve large numbers of disputes involving the same defendant in a focused negotiation effort; (4) mediations; (5) arbitrations; (6) neutral evaluations; (7) summary mini-trials; and (8) accelerated fast-track litigations.

But, these efforts over the years, which might be characterized as piecemeal, haven’t been nearly enough.  A tremendous amount of work will need to be done before courts will notice a significant reduction in backlogs.  The increased scale of ADR within the state will have to be enormous – and, it promises to be.

In regard to mediation, one goal is to have parties begin the process “shortly after the litigation has commenced.”  This aim recognizes that parties have a better chance of constructively resolving their disputes if their conflicts are addressed through mediation early.  As the parties get more deeply mired in litigation, hostilities usually rise, and the possibility of working together toward a mutually satisfactory agreement becomes more difficult to achieve.

The plans for presumptive mediation in New York are ambitious.  But the judiciary appears to be dead serious about making it happen.  No doubt, implementation will encounter some difficulties, both foreseen and unexpected.  However, the Interim Report and Recommendations is thoughtful and encouraging for those of us who believe that often, there are better ways to handle disputes than fighting them out in front of a judge.

 

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