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ADR Overview

In General

The Commercial Division in New York County Supreme Court operates the Commercial Division Alternative Dispute Resolution Program. The Program is basically a mediation program, in which neutrals meet with the attorneys and parties in Commercial Division cases, review the facts and legal issues presented by the case, and attempt to facilitate discussions between or among the parties and their attorneys and explore the possibility of settlement. Upon the directive of the Administrative Judge, commercial cases from outside the Division may become eligible for inclusion in the ADR Program. By Administrative Orders dated May 24, 2016 and April 19, 2017, commercial cases from certain Parts outside the Division may be referred to the Program.

Cases are referred to the Program by Order of Reference of the assigned Commercial Division Justice or authorized non-Division Justice. Determination of the cases that should be referred and the appropriate time at which to refer them are matters for the discretion of the assigned Justice. Generally, the Program prefers to receive cases early in their life so that a settlement may be explored before the parties have spent large sums in the discovery process.

When an Order of Reference is signed by a Justice, the parties are required to participate in mediation in accordance with the Rules and Procedures of the ADR Program. Settlement, however, is, of course, purely voluntary.

The court maintains a roster of neutrals, who are required to have training in mediation (see the Guidelines in Part 146 of the Rules of the Chief Administrative Judge). There are over 250 neutrals on the court's roster.

Pursuant to the ADR Rules and Procedures, when a case is referred by order of the assigned Justice, a mediator is designated from the roster by the ADR Coordinator, subject to the right of the parties to choose another one.

The first ADR session must take place within 30 days from the date the mediator is confirmed by the Coordinator, and the process is to conclude within 45 days from that date. The litigation is not stayed during the mediation process unless the court so directs, which occurs very rarely. No later than ten days prior to the first ADR session, each party must submit to the mediator a memorandum setting forth the party's opinions as to the facts and issues in the case, contentions, and suggestions as to the bases on which the case might be settled.

Once a mediator has been designated, the mediator will typically confer with counsel by phone as to scheduling and will then review submissions of the parties required by the Rules and Procedures. Attendance of the parties and counsel is mandatory for the first three hours of the ADR process. During the mediation, the mediator will meet with all parties and attorneys in joint sessions, during which they discuss the facts and issues and the positions of the parties. The mediator will from time to time also meet separately with each party or party representative and the attorney therefor in what are called "caucuses," which allow the mediator to explore the demands of the parties and their reactions to the discussions in the joint sessions.

The Rules and Procedures provide for additional time to mediate if the matter is not resolved at the first session. Generally, the ADR Coordinator may, without court intervention, allow an additional 30 days, that is, up to 75 days from the confirmation date.

Pursuant to the Rules and Procedures, the mediation process is confidential and communications therein are not to be revealed outside of the ADR process. The mediator shall not be required to testify later about what happened at the mediation. Confidentiality is intended to promote frank discussion at the mediation and to ensure that nothing a party says in mediation may adversely affect the party's case in court should the mediation fail to resolve the dispute.

There is no charge to the parties for three hours of mediation, nor for the mediator's time expended in preparation for the mediation session(s). If the mediation process continues beyond the three hours, the parties must compensate the mediator at a rate fixed by the ADR Rules and Procedures or another rate if agreed upon.

Commercial Division Pilot Project (2014-16)

Effective July 28, 2014, cases were referred to a Mandatory Mediation Pilot Project pursuant to an Administrative Order of the Administrative Judge for Civil Matters of the First Judicial District. In this project, each week, every fifth Commercial Division case in which a Request for Judicial Intervention was filed during the previous week was designated for referral to the Pilot Project for mediation. By order of the Adminstrative Judge, this experiment concluded effective February 1, 2016.

Mandatory Mediation Pilot Project for Certain
Commercial Cases Outside the Commercial Division

By Administrative Order of the Administrative Judge of this court dated April 19, 2017, a pilot project (“the Non-Division Pilot Project”) was established in which certain commercial cases not assigned to Commercial Division Justices are automatically referred to mandatory mediation in the ADR Program in accordance with the Rules and Procedures thereof. The cases in the Non-Division Pilot Project are newly-filed commercial cases assigned to a Justice outside the Division and in which the filer of the Request for Judicial Intervention (“RJI”) designated the matter as a “Contract” case on the RJI and sought a preliminary conference. Before deciding to institute the Non-Division Pilot Project, the Administrative Judge reached out to interested Bar groups and solicited comments and suggestions. The responses received were favorable to the proposed plan for this project.

Under the Administrative Order, the staff of the court shall identify all such cases at the time of the filing of the RJI and assignment of the case to a Justice. In each such case, the staff shall transmit to counsel through the New York State Courts Electronic Filing System (“NYSCEF”) a Notice of Referral to Mandatory Mediation together with a copy of the Administrative Order directing the parties to proceed to mandatory mediation in accordance therewith and with the procedures set forth in the applicable rule of the ADR Program. The Notice will also inform the parties of the date of the scheduled preliminary conference.

Counsel and parties in cases so designated shall proceed to mediation as provided in the Order and the ADR Rules and Procedures and shall adhere to those Rules and Procedures in all respects applicable, including the deadlines set out therein.

As an element of this Project, the court has established a centralized Preliminary Conference Part for all Contract cases covered by the Administrative Order and a single Justice of the court shall be assigned to that Part. At the outset of the Pilot Project, the Part in question shall be Part PC-CNCD (located in Room 218 at 60 Centre Street, Phone: 646-386-3306), Justice Anil C. Singh presiding. The preliminary conference shall be scheduled in that Part for the earliest date available.

In advance of the preliminary conference, counsel shall discuss with one another all discovery issues in the case, including the possible provision of discovery tailored to the mediation directed by the Administrative Order that will assist in making the mediation as efficient and productive as possible. Such tailored discovery might include a limited exchange of information on a schedule consistent with the mediation process. Counsel shall discuss all discovery matters with Justice Singh at the conference. Any such tailored or limited discovery as may be agreed upon or directed by the court in connection with the mediation would be without prejudice to a full discovery process for purposes of the litigation. Justice Singh will issue a Preliminary Conference Order addressing all discovery issues outstanding in the case and providing for comprehensive discovery for the litigation, as well as any tailored discovery that may be appropriate for the mediation, and suitable schedules therefor. Counsel shall, within four business days after the preliminary conference, consult one another and submit an Initiation Form to the ADR Coordinator as provided in the ADR Rules and Procedures, and shall thereafter proceed to mediation in accordance with those Rules.

All court proceedings in the cases in the Non-Division Pilot Project other than the preliminary conference shall be conducted by the Justice to whom the case was assigned upon the filing of the RJI.

Failure to comply with the Administrative Order or with the ADR Rules and Procedures in the Non-Division Pilot Project cases may subject the party or counsel in question to sanctions.

Applications to Join Roster

At present and until further notice, the ADR Program is not accepting or processing applications for admission to the ADR Roster. Applications that were previously submitted but have not yet been acted upon will be kept on file for future consideration.

April 2017


ADR COORDINATOR
Simone Abrams
60 Centre Street, Room 148
New York, NY 10007
Phone: 212-256-7986
Fax: 212-952-3772
E-Mail: sabrams@nycourts.gov

CLERK-IN-CHARGE
Doreen Gushue
Commercial Division Support Office
60 Centre Street, Room 119 A
New York, NY 10007
Phone: 646-386-3020
E-Mail: dgushue@nycourts.gov


ADR Documents:

ADR Rules and Procedures:

Rules and Procedures of the Alternative Dispute Resolution Program (effective May 1, 2017)

Adobe Acrobat PDF DocumentRules and Procedures of the Alternative Dispute Resolution Program(rev. 2/2016)

Administrative Order Regarding Mandatory Mediation of Certain Commercial Cases (Cases Outside Commercial Division)--Pilot Project

Adobe Acrobat PDF DocumentOrder dated April 19, 2017

Administrative Orders Regarding Mediation of Non-Division Commercial Cases (Referals by Justices):

Adobe Acrobat PDF DocumentOrder dated April 19, 2017

Adobe Acrobat PDF DocumentOrder dated May 24, 2016

Forms:

Adobe Acrobat PDF DocumentADR Initiation Form (rev. 11/2013)

Ethical Standards:

Adobe Acrobat PDF DocumentEthical Standards for Mediators

Ethical Standards for Arbitrators and Neutral Evaluators


Roster of Neutrals:

Adobe Acrobat PDF DocumentA - F     Adobe Acrobat PDF DocumentG - L     Adobe Acrobat PDF DocumentM - S     Adobe Acrobat PDF DocumentT - Z

Adobe Acrobat PDF DocumentApplication to Join the Roster of Neutrals [Note: Applications not being accepted at present.]

 

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