PROTOCOL FOR THE
COURT-ANNEXED NEUTRAL EVALUATION PROGRAM ("MEDIATION")The Supreme Court, Civil Branch, New York County operates the Court-annexed Neutral Evaluation Program ("the Program")(informally known as "Mediation"). The procedures followed in the Program are set forth below.
A. Nature of the Process
In this program, Neutral Evaluation Attorneys, specially selected staff attorneys, evaluate cases based upon informal presentations by the attorneys for the parties. The Evaluation Attorney will endeavor to facilitate a settlement between the parties. Where deemed appropriate, the Evaluation Attorney may offer opinions about the parties’ chances for success on the issues presented in the case. These opinions may assist parties in their own analysis of the merits of their cases and thus help to facilitate discussion between the parties and to generate a settlement.
In general, presentations are made to the Evaluation Attorneys in sessions attended by counsel for all parties. The attorneys will then meet with an Evaluation Attorney individually. Experience has shown that counsel may be reluctant to be completely candid and expansive about their positions in the presence of the adversary. These private discussions are very helpful to the Evaluation Attorney in determining if a case can be settled.
Cases eligible for the program consist of personal injury matters, commercial cases that were not filed in or were transferred out of the Commercial Division, real estate cases, and other cases in the "General" category of the court’s inventory, as well as Motor Vehicle Cases. Cases will be referred upon the filing of the note of issue, as explained below. Counsel who receive notice to attend an evaluation conference are required to do so. Many cases in which attorneys initially are skeptical about the chances for a settlement, or indeed in which they are certain that settlement is impossible, in fact come to a settlement. No settlement will be reached unless all counsel agree, and there will be no penalty if a party refuses to settle.
B. ConfidentialityPresentations or communications made by attorneys during the evaluation about the merits of their cases are confidential. The Evaluation Attorney will not communicate with the Justice to whom the case is assigned, or other persons not participants in the process, concerning any aspect of the merits of any case that goes into the Program. If a case fails to settle, the Evaluation Attorney will not inform the Justice which attorney refused to agree on a resolution. Nor will the Evaluation Attorney discuss with any counsel to any case being evaluated any information that that attorney may convey to the Evaluation Attorney in confidence without the advance permission of that attorney. Communications between the attorneys during any evaluation session or made to the Evaluation Attorney as part of the process may not be used by any party as an admission or otherwise in the case or in any other litigation. The Evaluation Attorney will not testify about any aspects of the evaluation process, whether as a witness in that case or in another case. The Evaluation Attorney will not, for instance, testify as to any alleged concessions or admissions made on behalf of any party in the process, nor as to whether any party agreed to settle a matter in general or on any particular terms.
Notwithstanding the foregoing, if a case is remanded to the assigned IAS Justice for trial or sent to the Administrative Coordinating Part for that purpose, an Evaluation Attorney may advise the Justice presiding of the amount of any final demand or settlement offer made by a party unless the demand or offer is stated to be confidential, in which event it shall not be disclosed to anyone, other than counsel for parties to the case, without the advance authorization of the attorney who made it. Further, refusal by any attorney to appear for an evaluation session is a violation of the rules of the Program and will be reported to the assigned IAS Justice for appropriate action.
C. How Cases Enter the ProgramWhen a note of issue is filed in any Motor Vehicle case or in any case assigned to most of the General Assignment Parts, the case will be referred to the Program. All of these cases will be evaluated unless evaluation would be impractical, in which event the case will be referred back to the assigned Justice.
Upon filing of the note of issue, calendar cards are prepared and filed in the Clerk’s Office. When an Evaluation Attorney requires additional cases, the Office will be so advised and will cull out the cases that have been waiting longest assigned to all of the aforesaid Parts, unless a Part is completely current. In addition, if the conduct of a Settlement Day (see below) is appropriate and efficient, cases of a particular defendant/carrier may be selected in a single group and not in strict waiting time order. Finally, because of the disproportionately large number of cases pending in the Motor Vehicle Part, a substantial number of Motor Vehicle referrals will take place.
Attorneys for the parties will be advised by Program staff by telephone or mail of a date and time for the evaluation session. Adjournments may be obtained if the scheduled date proves inconvenient. A stipulation or letter request reflecting the consent of all parties, setting forth the reason for the adjournment, and preferably setting forth a requested adjourned date must be submitted 72 hours or more in advance of the scheduled date. Requests for adjournment by phone are not accepted.
For the convenience of the Bar, the evaluation sessions are conducted on a staggered schedule. Attorneys will be advised when to appear. The calendar published in the Law Journal will also list the precise times of each scheduled appearance. In order that the staggered schedule may work effectively for the benefit of all attorneys, it is vital that, at or before the time scheduled for each case, the attorneys on the case appear and check in with the Court Clerk in the Part. If an attorney anticipates any difficulty appearing on time, he or she should contact the opposing counsel prior to the date of the appearance and inform him or her of the problem.
The attorneys shall communicate prior to the initial conference and plaintiff’s counsel shall advise the adversary of a "record demand." This expedites the process by permitting defense counsel to evaluate a case preliminarily prior to the initial conference.
The evaluation process will generally be completed within 120 days from the filing of the note of issue. However, in some cases several sessions may be required or parties may need time to consult and to reflect on issues, offers and demands. Such cases may be retained in the Program beyond 120 days where necessary to complete the process and where the assigned IAS Justice approves.
D. Settlement Days
The Program has in the past conducted settlement days involving groups of cases against particular defendants or in which insurance coverage is provided by particular carriers. Claims adjusters or other persons with full authority to settle on the part of defendant are present on these days and counsel for plaintiffs are advised that that will be the case. Experience has demonstrated that the presence at the evaluation of the decision-maker for a party can greatly assist the productivity of the process. Because the adjuster or other authorized person will be present, serious consideration can be given to a number of cases at the same time much more expeditiously and efficiently than would otherwise be possible.
E. Preparation by Counsel/Participation by Knowledgeable and Authorized
Counsel
Because the evaluation process will address the merits of liability and damages issues, it is essential that parties be represented at the evaluation by an attorney who is knowledgeable about the case and fully authorized to settle it or in ready communication with the client or the client representative who can authorize settlement. Otherwise, time may be wasted, both that of counsel and of the Evaluation Attorneys. Cf. Uniform Rule for the Trial Courts 202.26 (e).
Counsel shall be prepared to present at the evaluation a copy of the pleadings, the bill of particulars, and any medical or other records necessary to an informed evaluation of the case and of the injuries claimed.
F. When Cases Fail to Reach Settlement in the Program
Cases that fail to come to settlement in the Program will be remanded to the Parts from which they came. However, in some instances, the case may instead be scheduled by the Neutral Evaluation Attorney for jury selection for a date certain; in these instances, counsel will be advised to report to the Administrative Coordinating Part (Part 40) or the Motor Vehicle Part on the selection date and the case will proceed to jury selection that day (unless the Judge presiding in the Part permits the matter to be adjourned). Counsel will be afforded an opportunity to consult their schedules before the final selection date is fixed by the Neutral Evaluation Attorney.
All trial-ready City cases will proceed through the Neutral Evaluation Program. If a City case does not come to settlement in the Program, then, in the presence of counsel, it will be assigned a date by the Evaluation Attorney on which the case will appear before the Neutral Evaluation Attorney for a Last Clear Chance Conference, which will represent the last opportunity for a settlement conference prior to jury selection. Cases scheduled for this Conference will not be adjourned, whether to accommodate further settlement talks or consideration of settlement offers, or for other reasons. Since discovery will have long since been completed, counsel should not expect to be able to ask for additional disclosure. If the case does not settle on the day of the Last Clear Chance Conference, it will appear in the Administrative Coordinating Part (Part 40) without fail 14 days later, a Monday, at which time it will be sent out for jury selection and trial. The court will conduct no settlement discussions on the date set for trial or during jury selection. Thus, counsel who receive from a Neutral Evaluation Attorney notice of a proposed date to appear for a Last Clear Chance Conference should understand that the date for jury selection and trial of their case is firmly fixed for 14 days after the date of the Last Clear Chance Conference, subject only to the possibility that the trial date might be mooted by settlement at the Conference. Adjournment of the trial date will not be permitted. Therefore, attorneys should check their calendars when the Evaluation Attorney proposes a date for the Last Clear Chance Conference. The schedule of counsel and their witnesses will be taken into account at that time. Since counsel will definitely be going to trial two weeks after that conference, if that trial date is inconvenient, they should immediately advise the Evaluation Attorney.
The Evaluation Attorney handling Last Clear Chance Conferences will schedule dates for appearances for such Conferences (and consequently for trial) using a form that explains the procedure. To consult this form, click here.
G. Staff of the Program
The evaluations are conducted by Shelley Rossoff Olsen, Esq. (Mediation 1), Neutral Evaluation Attorney, and Michael Tempesta, Esq. (Mediation 2), Senior Neutral Evaluation Attorney.
H. Further Information
Parties with questions
about any aspect of the Program should call 646-386-3689 (Mediation 1) or
646-386-3691 (Mediation 2).
Dated: March 1, 2006
HON. JACQUELINE W. SILBERMANN
ADMINISTRATIVE JUDGE
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