Mediation Practice in the Southern District of New York

By on September 16, 2016

Over the past 25 years, the use of mediation by courts and litigants has mushroomed. One might well ask whether efforts at establishing mediation norms and standards have been able to keep up with this growth spurt in mediation’s broad acceptance and popularity. There are multiple forums for conducting ADR. Some “mediations” involve little more than counsel, either with or without their clients present, sitting down before an adjuster” in a no frills attempt to bridge the parties’“bid” and “ask”. Other mediators will talk to the parties, either together or separately, for a couple of hours and then, in the absence of a quick agreement, call it quits. Unless counsel is familiar with the practice of a particular mediator or mediation provider, it may be a challenge to correctly forecast for the client what will take place during the mediation session and what, if anything, may be demanded of them.

There are no widely accepted guidelines concerning the qualifications to be a mediator. A retired professional wrestling referee with no formal mediation training could probably hang out a “mediation” shingle at a store front. At least, in that instance, parties could be assured that this mediator would not tolerate hitting below the belt. Hopefully, counsel will have performed diligence concerning the background, qualifications and methodology of the mediator selected, if you want to run a background check you should try this reverse phone lookup for free. This research should assist counsel in explaining to the client who the mediator is and what his or her qualifications are.

9-16Although some mediators have no doubt engaged in blatant conflict of interest, coercive behavior or outright fraud, these incidents are thankfully infrequent. In a mediation proceeding in which a client is represented by counsel, counsel can simply terminate an improper or abusive mediation by walking out with the client. However, this is probably not what the nervous client wants to hear from the lawyer before the mediation begins.

A Boston University Law Review article by Professor Michael Moffitt, titled “Suing Mediators” [Vol. 83:147, 154 (2003)] observes that “a clear standard of practice for mediators is difficult to identify. Mediation is a fragmented occupation, with practitioners varying to tremendous degree in their training and methodology. While some have argued that mediation should be treated as a profession, the lack of coherence in admission and practice standards makes the analogy imperfect at best. Instead, mediators operate under a patchwork of standards, promulgated by a range of practice associations, program administrators, and court systems.”

As more and more cases are referred to court-annexed mediation, courts have come to recognize their responsibility to ensure the quality of the mediation services provided. However, very few of the mediation programs that operate on the state or federal level have implemented any kind of systematic, performance-based competency assessment of their mediators. In the absence of competency assessment, court-annexed mediation programs have tended to rely on past training and experience, and participant feedback (when it is available), to determine whether the mediators on their rosters are doing a good job.

The ADR Program for the SDNY has taken steps to standardize mediation practice in its court-annexed mediation program. A joint pilot project was created by the New York City Bar Association Committee on Alternative Dispute Resolution and the ADR Program for the SDNY to create a mechanism for continued evaluation of mediators once they are added to the SDNY mediation roster. As a result of the project, a protocol was developed for ongoing evaluation of the SDNY’s panel mediators. In the past, mediators have been assigned by court staff on the basis of their having been previously approved by the court to perform court-annexed mediation. The evaluation protocol, which requires live observation and evaluation of the mediator during a mediation, went into effect in January 2016. Even mediators who have been conducting court-annexed mediations for many years will be subject to evaluation. The SDNY may be the only federal district court that presently conducts ongoing observation and evaluation of court-annexed mediators.

An intrinsic challenge to developing an evaluation protocol is determining what skillsets make for a good mediator in the first instance. For example, is there a place in the mediation room for the mediator to use pushing and prodding? Is there a point when pushing and prodding may be viewed by the participants (or by the evaluator) as coercion? As the planning for the SDNY protocol progressed, project participants identified different components of the mediation process to evaluate.

In identifying these components, however, the ADR Program for the SDNY was more or less communicating to its corps of 300 volunteer mediators that a certain mediation “process” was expected to be adhered to. For example, the components of the process that would be evaluated include: (1) the pre-mediation conference call with counsel; (2) the mediator’s opening statement; (3) the joint session and (4) exploring facts/interests and developing opinions.

The formalization of this checklist made several implicit assumptions about how a mediation should be conducted. First, that a pre-mediation conference call was a good idea and that it was helpful to discuss the mediator’s expectations during that call; second, that the mediator would give an opening statement at the mediation; and third, that the mediator would conduct a joint session with all participants present at the mediation rather than move directly into private caucuses.

Within the protocol’s rubric, there is certainly flexibility to permit the mediators to “do their own thing” at the mediation without the risk of receiving a failing grade from the mediator evaluator. For example, some mediators request that counsel for the parties each make an opening statement in the joint session before private caucuses take place. Some do not use this practice. Some mediators will caucus first with the plaintiff; others prefer to meet first with the defendant. But minor variations aside, a lawyer for a party required to attend a mediation in the SDNY should know what to expect. Far from the Boston University Law Review’s dour assessment of the state of the mediation art in 2003, considerable progress has been made in standardizing mediation practice. Lawyers who have been directed to mediation by the SDNY Mediation Office should be able to provide their clients a solid roadmap of they may expect during the mediation.

Filed under Mediation, New York

Don’t Be An Unhappy “CAMP”er: Ignoring Second Circuit Mediation May Result In Grievance Panel Referral

By on May 5, 2016

 Three people talking - 3d renderThe Second Circuit advises litigants on its website that its mediation and settlement program (known as “CAMP”) is a long-standing and integral part of the court’s appellate process.  The Second Circuit assigns “experienced and skilled circuit mediators” to work with counsel and their clients to resolve disputes on the court’s civil docket at no cost to the parties. Although the mediation process is considered “voluntary,” failing to appear at a CAMP may result in sanctions and, possibly, a referral to the Court’s Grievance Panel.

In late 2015, parties to a Second Circuit appeal were directed to appear at the offices of a prominent mid-town New York law firm for a CAMP mediation.  The mediator appointed by the Court was a well-regarded litigation partner at the law firm.  Appellant’s counsel failed to appear at the mediator’s office at the appointed time.  By order, dated January 26, 2016, Circuit Judge Danny Chin ordered the parties “to show cause why disciplinary or other corrective measures should not be imposed on them” for failing to appear for the mediation.

In response to Judge Chin’s order to show cause, counsel advised the Court that that the appellant had “replaced” him as counsel and revoked his authority to speak on appellant’s behalf.  Counsel anticipated that appellant’s new counsel would make a formal substitution of counsel, but apparently never did so.  Judge Chin observed in his Order, dated March 14, 2016, that a party’s decision to replace counsel did not relieve counsel of their obligation to comply with Court orders until such time as the Court granted counsel’s party to be relieved.  “As counsel of record, they were obligated to respond to the Court’s order that they appear at a mediation conference, at the very least to notify the appointed mediator that their representation was in question and to request an adjournment.” However, Judge Chin found it more troubling that appellant’s counsel viewed the court’s mediation program as optional. Judge Chin found it remarkable that counsel did not even show the court appointed mediator the professional courtesy of a telephone call to advise her that they were not intending to appear.

Judge Chin determined that he would not refer the matter to the Court’s Grievance Panel based upon his determination that: (1) counsel’s conduct was limited to one case and not likely to be repeated; (2) counsel accepted responsibility and conceded error; and (3) counsel did not act in bad faith.

Practice Tips 

First, merely because a client has relieved a lawyer as his counsel, in both the trial court and on appeal, counsel should not assume that his judicial obligations have ended.  Until such time as a motion for substitution of counsel is filed and granted by the court, counsel’s failure to respond to court orders may result in the imposition of sanctions.  At a minimum, counsel should alert the court (or, in this case, the court-appointed mediator) that a substitution of counsel is in the offing.  As a practical matter, this communication may provide the client additional time to effectuate a substitution of counsel.  It also apprises the court and the adversary that conducting a mediation before the change of counsel has been effectuated would not be efficacious in resolving the dispute.

Second, a party’s failure to appear at a court-directed “voluntary” mediation, during either a trial court or appellate proceeding, also may result in the imposition of sanctions.  In the SDNY, an increasing number of civil cases are being referred to mediation.  Although the mediation process is confidential and the parties’ stated positions during mediation are never disclosed to the judge or magistrate handling the matter, it may be brought to the court’s attention if a party fails to appear for the mediation or, in the judgment of the mediator, fails to participate in the mediation in good faith.  Although court-annexed mediation proceeds on a separate track from the court’s discovery scheduling order, the mediation program is an integral part of the judicial resolution process and must be treated as such by the litigants.

Filed under Appeal, CAMP, Federal Court Litigation, Litigation, Mediation, Mediation Program, new york courts, Sanctions, Second Circuit, SUBSTITUTION OF COUNSEL

The Success Of The SDNY Mediation Program

By on January 17, 2014

The Mediation Program of the SDNY provides litigants in commercial litigation with an opportunity, generally early in their litigation, to resolve their disputes without going through the expense of full-blown discovery and the uncertainty of trial. 

As reflected in the Mediation Program’s recently released Annual Report , individual judges referred 113 cases in general civil litigation (which does not include employment and civil rights claims).  Of that number, a successful resolution in mediation came about in 60% of the cases referred, an increase from 53% in 2012.  Considering the determination with which business disputes are litigated, a 60% successful rate is a remarkable achievement. 

Local Civil Rule 83.9, effective January 1, 2014, and other actions taken by the Court, have resulted in a more flexible, streamlined operation.  For example, in 2013, mediations could be conducted in the mediator’s law office for the first time. In certain circumstances, conducting the mediation in an office, rather than at the courthouse, may result in greater convenience to the parties and their clients. It certainly makes the mediator’s job easier. 

Rebecca Price, the Mediation Supervisor, has shared with the 396 pro bono mediators in the program some of the favorable feedback she has received from program participants.  Some comments from lawyers include the following:

“I think the mediator did a great job helping me where he presented me with
alternative strategies in going back with counter offers, and why they
should be higher rather than lower. Most of the numbers I presented were
fair, but the case had some problems and though I think my client should
have been offered more money – the final number was fair, and the employer
threw in a positive recommendation, something I’d never seen before. All in
all I felt it was a fair settlement and I learned from the mediator.”

“Given that opposing side had not responded to any attempts at negotiation
over several months, this was necessary and we accomplished in 3 hours what
we could not in several months.”

“The mediator and the Mediation Program were instrumental in settling the
case, which occurred the day after the second mediation session.”

“The mediator was very gracious with her time, and patient with the
parties. She was very helpful and her efforts are appreciated.”
 

Mediation can be particularly effective in resolving business disputes because counsel can structure an agreement that contains important business terms that, if the case proceeded to trial, would not necessarily come to the court’s or the jury’s attention.  The resolution of a business dispute can involve crafting precise terms, particularly when the parties have had a course of dealing over a long period of time.  The very best outcome in the mediation of a commercial dispute is one that satisfactorily resolves the matter and permits the parties’ business relationship to continue. 

Filed under ADR, civil litigation, Mediation, Mediation Program, Program', Rebecca Price, SDNY, SDNY Local Rule 83.9, SDNY Mediation Program 2013 Annual Report Tagged with