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6/19/13: Mandatory Mediation Arrives in Brooklyn

The New York state Supreme Court based in Brooklyn started a new project that eventually could lead to requiring all civil cases to pass through a mediation process before proceeding to trial.

This made Brooklyn the first New York court—both state and city--to require mediation in civil cases.

In New York state, the Supreme Court is the trial level court, under the Appellate Division and the state’s top court, the New York Court of Appeals.  

The idea for the program appears to come from “The Chief Judge’s Task Force on Commercial Litigation in the 21st Century," that was tasked to “ensure that the New York Judiciary helps [New York state] retain its role as the preeminent financial and commercial center of the world.” The report is available here.

Brooklyn is the first state trial court to follow the report’s strong suggestion of implementing mandatory mediation before each trial.  The report, released a year ago, recommended that 20% of the cases filed in the state’s commercial courts automatically be referred to mediation.

The first round of pilot cases will involve the New York City Transit Authority, according to a June 14 Brooklyn Daily Eagle report (available here).

There are about 10-12 Brooklyn transit cases filed weekly, the article says, which do not amount to 20% of the total cases filed in the borough. The lower number of pilot program cases might not be reflective of how the program will fully function, but the article reports that Brooklyn Supreme Court Administrative Judge Lawrence Knipel said it “was a manageable number.”    

The project’s purpose is to ease the cost of litigation, ensure speedy resolution, and relieve the court of 54,000 pending cases, which is more than any other New York state county, the article says. Knipel noted, “Mandatory mediation will hopefully reduce the time and financial costs of a trial not only for the county but for the attorneys and the parties involved.”  

Unlike most mediation, the New York process is incorporated within the trial procedure.  It is expected to take place after the discovery phase and prior to the calendaring of a trial date.

The idea behind this arrangement is that parties will have an opportunity to mediate the issues of the case in hopes of reaching a settlement, Knipel said in the article.  

The pilot program’s duration isn’t clear. But the success of the trial process will depend on the Transit Authority, and whether it will make a “concerted effort to settle”; the article quotes an attorney in private practice citing New York City’s “aggressive settlement policy,” who questions whether the MTA will have the same orientation.

The article reports that the program will make use of voluntary mediators who will work with no compensation. The first mediator, the Brooklyn Eagle reports, will be former Supreme Court Justice Jules L. Spodek, whose daughter is now a judge on the same court.

Lack of mediator compensation in court programs is a controversial issue.  See Jeff Kichaven, “Pay More and Resolve Cases?” 23 Alternatives 177 (December 2005).  

But other mediator selection factors will come into play, too, including qualifications, and the selection process itself.  There were no specific rules cited in the article for governing the process.

Arlene Hackel, the New York state court system’s assistant director of communications, provided no further information about the program, which was not yet available on the courts’ site.  But she said that the Brooklyn Eagle “article appropriately depicts this new initiative.”

The chief judge’s task force that studied commercial litigation and recommended mandatory mediation was composed of 34 members, who were led by co-chairs Judith S. Kaye, who is former New York State Chief judge and is now of counsel at Skadden, Arps, Slate, Meagher & Flom, and Martin Lipton, a founder and name partner of Wachtell, Lipton, Rosen & Katz. The task force met two years ago to determine how the New York Supreme Court could maintain its position as a world-class court system, and issued its report last June. See CPR’s website article on the report here.  

--Thendo Tshivhengwa, CPR Intern