July 23, 2019
Thirty years ago, mediation—settlement negotiations guided and supervised by a third party neutral—was something of an alien concept for New York civil litigators. We remember many conversations dismissing participation in early mediation of a case as a sign of weakness or simply as an opportunity for free discovery. Today, however, soaring litigation costs and crowded court dockets have dramatically changed the landscape and the judiciary has adopted a clear policy promoting settlement discussions at an early stage. Compulsory mediation is now commonplace in the state and federal courts and its reach is only expanding.
Court-ordered mediation early in the litigation process is the clear trend in New York’s federal courts. The Northern and Western Districts both have rules which establish automatic referral to mediation for almost all civil cases filed in those districts. The Southern District requires early mediation for virtually all employment cases, including discrimination and wage and hour claims, as well as suits involving the police. Only the Eastern District does not have a court-wide automatic mediation program but leaves the choice to refer the case to individual judges.
The New York State Courts also actively promote mediation at the initial stage of a case. Currently, the Commercial Division of Supreme Court of New York County, which handles all significant commercial cases filed in New York City, mandates that all of its judges consider referral to its mediation program. Such referrals are now routine. In September 2019, the New York State Court system will begin rolling out a state-wide program which presumptively refers all civil cases to mediation. The procedures for such referral, and defining cases which are exempt from the process, are still in formation.
Data shows that the court-sponsored mediation programs are very successful. Some statistics show that more than half the cases sent to court-ordered mediation are resolved without further court intervention. As mediation becomes the primary method for resolving disputes in New York, attorneys and clients need to become familiar with the process and open to its potential to resolve matters earlier, more efficiently and at lower cost.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. We would be pleased to consider providing additional details or advice about specific situations. For additional information on this topic, please feel free to contact Alice K. Jump, who has extensive experience in representing clients in the mediation of employment, trust and estates and commercial disputes.