New York is continuously working to advance the delivery and quality of civil justice in this state. We recently discussed the technological developments in New York State Commercial Division courtrooms and a few months ago we discussed the increasingly-codified perspective of Commercial Division Justices to encourage junior attorneys to play a larger role in the courtroom. Now it seems that New York State civil courts are catching up to the Commercial Division.

Last week, Chief Judge Janet DiFiore and Chef Administrative Judge Lawrence K. Marks announced the implementation of a statewide “Presumptive, Early Alternative Dispute Resolution” program for all civil cases. The recent press release can be found here. The program is expected to begin in September 2019.

The program, nicknamed “Presumptive ADR”, targets a broad range of civil cases ranging from commercial disputes to matrimonial and personal-injury matters. The program is directed at cases in their inception to encourage upfront settlements or the significant narrowing of disputes leading to speedier resolutions in the future.

Any litigator that regularly practices in New York State Court will tell you that the adjudication of a civil matter from start to finish can take some time. However, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks are expecting that this program will significantly reduce delays as well as decrease costs to the parties and the judiciary. “Making ADR services widely available in civil courts throughout the State—and facilitating the use of such services as early as possible in the case—are major steps toward a more efficient, affordable and meaningful civil justice process,” said Chief Judge DiFiore.

This is not the first time that the New York State Court System has tried to implement ADR into its case management system. Effective January 1, 2018, Chief Administrative Judge Lawrence Marks amended Rules 10 and 11 of Section 202.70(g), known as the “Rules of Practice for the Commercial Division,” to require each party to certify that it has discussed with counsel the availability of ADR mechanisms provided by the Commercial Division and/or private ADR providers, and whether the party is presently willing to pursue mediation at some point during the litigation. We discussed this amendment here.

The New York court system plans to issue uniform rules to authorize, endorse and provide a framework for courts throughout the state to introduce “presumptive ADR” via automatic presumptive referrals in identified types of civil disputes, subject to appropriate opt-out limitations. While court-sponsored mediation  already is integrated into the New York State civil court system, it remains underutilized relying on the parties to opt in or, in rare cases, an individual judge to refer the matter to mediation in specific cases.

The new program mirrors the mediation program currently in place in the United States District Court for the Southern District of New York.  In the Southern District, the assigned District Judge or Magistrate Judge may determine that a case is appropriate for mediation and may order that case to mediation–with or without the consent of the parties–before, at, or after the initial case-management conference.

New York State litigators should keep the statewide “Presumptive ADR” program in mind when retaining clients in the upcoming months. Some cases may be ripe for presumptive ADR at the outset leading to a speedy resolution and happy clients.

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