Courts Increasingly Using Presumptive ADR to Settle Civil Cases
The New York Unified Court System announced in May that it would begin implementing a “presumptive”—or mandatory—alternative dispute resolution (ADR) program. Under the program, a wide range of civil cases would automatically be referred to mediation, arbitration, or other ADR when a lawsuit is filed and before the case is allowed to proceed in court. The initiative, which greatly expands New York’s existing ADR program, is expected to be in place by the end of 2019.
Launched in April 2018, New York’s presumptive ADR initiative is designed to eliminate case backlogs, improve access to justice, reduce the cost of litigation, and speed up resolution. In developing its program, New York looked at neighboring New Jersey, which has had a presumptive mediation program in place for more than 10 years. Despite some initial reluctance among New Jersey attorneys, that program has proven to be quite successful.
New York’s presumptive ADR program is expected to benefit the state court system as well as litigants. Although costs will rise initially due to the need to hire staff, increase the number of court-sponsored ADR options, and educate attorneys and judges, the court system anticipates cost savings over the long run.
Advantages and Disadvantages of Mediation
ADR refers to any process through which disputes are settled outside of a traditional court of law. With mediation, the parties collaborate to reach a resolution, using a neutral party to facilitate communication and evaluate each side’s position. Often, the mediator will point out strengths and weaknesses that the parties did not recognize or fully appreciate, helping the parties come to a mutually agreeable conclusion. Mediators do not decide a case, though, and they cannot force the parties to accept an outcome.
Arbitration is much more formal. The parties present their cases before the arbitrator and can question witnesses and offer evidence. The arbitrator then renders a decision that is legally binding. Because parties have limited control over the outcome, litigants tend to be less satisfied with arbitration than with mediation.
Mediation allows the parties to communicate directly and affords more privacy and confidentiality than a trial. It can begin early in the litigation process, and the parties can explore a wide range of remedies that might not have been available to them in court. It’s also more predictable than a trial decided by a judge or jury, avoids a “win or lose” outcome, and allows for an amicable resolution that may preserve the parties’ relationship.
Mediation can even be beneficial after a verdict has been reached. If one of the parties appeals, the parties will be educated about the limited jurisdiction of the appellate court and the presumption that the judgment of the trial court was correct. Appellate mediation can also allow the parties to resolve the entire case rather than just the limited issues that are presented on appeal.
The Eleventh Circuit Court of Appeals has had a compulsory mediation program for all eligible cases since 1992, which is offered at no charge to litigants. The Federal Circuit Court of Appeals launched its mediation program in 2006.
Of course, mediation isn’t appropriate for every dispute. If the parties are entrenched in their respective positions and not committed to meaningful negotiation, mediation will not be successful. Also, the legal system loses the benefit of publicly available precedent in a confidential settlement.
Trends and Limitations of ADR Programs
New York and other jurisdictions with mandatory ADR programs recognize that not all cases will be resolved through ADR. In light of that, the uniform rules for New York’s program are expected to include a process for opting out of presumptive mediation and for moving the case back into the court system if mediation fails.
New Jersey’s presumptive mediation rules allow parties to withdraw from mediation after the initial two hours ordered by the court, and opt out entirely for good cause.
While mandatory ADR for all civil cases remains relatively rare, most states require mediation for some types of cases, such as family court and small claims court matters where the amount in controversy does not justify costly litigation. Increasingly, commercial and real estate contracts include mandatory mediation clauses, and many employers now offer dispute resolution programs at no cost to employees.
The Alternative Dispute Resolution Act of 1998, 28 U.S.C. § 651, requires federal district courts to authorize ADR programs under their local rules and to promote such programs to civil litigants. A 2012 study by the Federal Judicial Center found that more than 36% of federal district courts authorize multiple forms of ADR and more than 28% authorize mediation.
Under Rule 16 of the Federal Rules of Civil Procedure, district courts may also order parties to attend one or more settlement conferences facilitated by a magistrate judge or special master.
As litigation costs continue to skyrocket and courts face heavy case backlogs, presumptive ADR may become more prevalent. But even if ADR isn’t mandated, civil litigants can save time and money by going to the negotiating table before heading to court.
Learn More About ADR and Mediation
To learn more about mediation/ADR and how it affects the landscape of litigation, visit the following sites:
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