Commercial Division litigators often hope that mediation will lead to a negotiated settlement, but their expectation – based on their prior experience –  is that it will not.  In this sense, mediation seems to have significant unrealized potential as a settlement tool in the Commercial Division.

 

A new proposal of the ADR Committee of the Commercial Division Advisory Council, put out for public comment on June 22nd by OCA, seeks to tap into some of that unrealized potential in a relatively simple way: by encouraging parties to Commercial Division litigation who are going to mediation to select jointly their preferred mediator.  Could this simple idea make a difference?  Evidence cited by the ADR Committee- both anecdotal and statistical – suggests that mediation is much more likely to be successful when the parties agree on their mediator.

 

In its proposal, the ADR Committee noted that joint selection of a mediator is a factor consistently cited by Bar Associations for enhancing the effectiveness of mediation in Commercial Division cases but noted that because of the current language of Commercial Division Rule 3(a) – that “[a]t any stage of the matter, the court may direct or counsel may seek the appointment of an uncompensated mediator” (emphasis added) – the process of some court annexed mediation programs is for a mediator to be appointed from a roster instead of first giving the parties the opportunity to agree upon their neutral.  The proposal quoted the analysis by the former Co-Chairs of the New York State Bar Association’s Dispute Resolution Section’s Committee on ADR in the Court on the benefit of party-appointed mediators, which explained that historically, settlement rates from the EDNY (67%) and WDNY (72%) mediation programs, which afford the parties the initial opportunity to jointly choose their mediator, are significantly higher than in the New York County Commercial Division (34%) where mediators are selected for the parties by the ADR Coordinator.

 

The ADR Committee proposal would modify Rule 3(a) to include the following sentence: “Counsel are encouraged to work together to select a mediator that is mutually acceptable, and may wish to consult any list of approved neutrals in the county where the case is pending.”  The ADR Committee also pointed out that Nassau and Westchester County Commercial Divisions currently give parties five business days to attempt to agree on a mediator before the process of appointment reverts to the court and suggested that including such a time period in Rule 3(a) “would be optimal.”  Recognizing that there are local rules governing ADR administration, the ADR Committee further recommended that instead of proposing an immediate change to the Commercial Division Rules, OCA and the Statewide ADR Coordinator consult with the ADR Administrators in each Commercial Division location to determine whether their ADR Rules can be revised to include an initial five-day period for the parties to jointly select a mediator.

 

For those interested, the public comment period is open until August 20, 2018, and comments are to either be: emailed to rulescomments@nycourts.gov; or sent to John W. McConnel, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004.

Several weeks ago we remarked on the Commercial Division’s renowned efficiency and innovativeness when it comes to proposing and adopting new and amended practice rules. But this isn’t the only area in which the Commercial Division is on the cutting edge of innovation.

Last week, members of the Commercial and Federal Litigation Section’s Committee on the Commercial Division, along with Westchester County Commercial Division Justices Linda S. Jamieson and Gretchen Walsh, presented a CLE program entitled “21st Century Courtroom: Using Integrated Courtroom Technology in the Commercial Division.” The program featured a mock traverse hearing during which the participating judges, lawyers, and witnesses showcased in “how-to” fashion the newly-implemented Integrated Courtroom Technology (ICT) in the Commercial Division courtroom, Courtroom 105, located in the Westchester County Courthouse Annex in White Plains.

As described in a recent NYSBA Journal article co-written by former Westchester County Commercial Division Justice Alan D. Scheinkman, in January of this year, the Westchester Commercial Division became the first civil court in the state to implement ICT, “enabling all courtroom participants – judges, clerks, attorneys, litigants, witnesses, jurors, and members of the public – to take fullest advantage of modern evidence presentation systems.” The stated goal of the ICT initiative “was to obtain the latest and best courtroom technology and to tailor it to fit the needs of the Commercial Division.”

Some of the hi-tech features showcased during last week’s mock hearing included:

  • High definition monitors for the bench, counsel tables, witnesses, jurors, and the gallery, which are controlled by the judge or clerk in terms of what is displayed, when, and on which monitors.
  • An “ELMO” document camera, fixed at the podium, which can be used to display evidence on all courtroom monitors.
  • Touch-screen witness monitors, on which witnesses can annotate evidence using their finger or a stylus.  Annotated evidence can then be captured, saved, and printed for consideration by the judge and/or jury.
  • Courtroom cameras, one facing the bench and another facing counsel tables and the gallery, can be utilized for remote appearances via Skype or other video-conferencing technologies.
  • Enhanced audio-conferencing integrated into the courtroom’s sound system, complete with a “white noise” function allowing for confidential, side-bar communications between attorney and client or attorney and judge.
  • Real-time transcription of court proceedings, which can be displayed on all courtroom monitors.
  • Charging stations available at counsel tables with standard AC outlets and wireless charging for compatible smart phones and tablets.

As advised by Justice Jamieson at the outset of the program, counsel need only bring with them to court their laptop or tablet, a USB flash drive, and their own HDMI cable.  Counsel must also schedule a dry-run and equipment test in advance of the proceedings to ensure compatibility and that everything is in working order.  In short, gone are the days of hauling in banker’s boxes of trial exhibits and binders duplicated multiple times over for the judge, witnesses, and opposing counsel — at least in the Westchester County Commercial Division.

Attention all current and future Westchester County Commercial Division practitioners: If you missed the program last week but want to familiarize yourself with the ICT features in Courtroom 105 in preparation for appearing before Justices Jamieson or Walsh, never fear. The Commercial and Federal Litigation Section’s Committee on Continuing Legal Education was on hand to film the presentation, which will be spliced and packaged for distribution on NYSBA’s “CLE Online and On-Demand” site later this year.