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.
Certification Relating to ADR
Commercial Division Rules 10 and 11 were amended effective January 2018 to require counsel for any party in Division cases to serve and file, and to submit at the preliminary conference and each subsequent compliance conference, a Certification (a court system form) stating that counsel has discussed with the party the availability of ADR mechanisms provided by the Division and/or private providers and indicating whether the party is at present willing to pursue mediation at some point during the litigation. The preliminary conference order shall contain, as appropriate, provisions for means of early disposition of the case, such as ADR, including, in all cases in which the parties’ Certifications indicate their willingness to mediate, a specific deadline for the identification of a mediator.
The Certification form can be accessed below under “Forms."
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 Administrative Judge, this experiment concluded effective February 1, 2016.
Mandatory Mediation Pilot Project for Certain
Commercial Cases Outside the Commercial Division
The Presumptive Early Mediation Program was established pursuant to the April 19, 2017, Administrative Order (AO) of the then-Administrative Judge Peter H. Moulton and continued by AO 9-27-2017, AO 1-2-2019, AO 6-5-2023, and AO 12-6-2024. This program provides for the automatic referral of certain commercial cases to mandatory mediation.
The Presumptive Early Mediation Program provides for the automatic referral of certain commercial cases to mandatory mediation. PMP conferences take place before the Administrative Judge, the Honorable Suzanne J. Adams or her designee. Participation in early mediation is mandatory absent a showing that a party would be subjected to unreasonable hardship or burden by participation in the mediation.
Presumptive Early Mediation Part (PMP) Conference Information
Applications to Join Roster
To be eligible to join a Roster in the First JD Supreme Court, New York County, a person shall be/have:
- Admitted to practice as an attorney
- Ten years of experience in the practice of law in the relevant subject matter
- Completion of Part 146 basic and supplemental training
- Substantial mediation experience in the subject matter they wish to mediate (may include participation in an apprenticeship program, observations or shadowing, co-mediations as a mentee)
To become a neutral evaluator on the Roster, a person must be an attorney or former Judge who has the background and the training required by Part 146 for neutral evaluators. Application to a 1JD Roster does not guarantee acceptance. Each application is reviewed in its entirety and members are on-boarded according to the needs of the Program.
The application form is posted below.
The ADR Office can be reached at the following:
Website: 1JD ADR
Email: [email protected]
Phone: 212-256-7956
FAQS: 1JD ADR FAQs
ADR Documents
ADR Rules and Procedures:
Rules and Procedures of the Alternative Dispute Resolution Program (effective December 6, 2024)
Prior Rules
Rules effective May 1, 2017
Revisions to May 2017
- July 17, 2019 [heading revised to update listing of Justices]
- March 8, 2018 [changes to Rules 6, 7, and 15]
Administrative Orders Regarding Mandatory Mediation of Certain Commercial Cases (Cases Outside Commercial Division)-Pilot Project
Presumptive Mediation Program (PMP) Order dated Dec 6, 2024
Presumptive Mediation Program (PMP) Order dated June 5, 2023
Supplemental Order Dated September 27, 2017
Administrative Orders Regarding Mediation of Non-Division Commercial Cases (Referrals by Justices):
Forms:
Attorney ADR Certification Form (Commercial Division Rule 10)
Mediators are required to complete the Report of the Neutral at conclusion of the mediation.
Parties are encouraged to complete the Post-Mediation Survey at the conclusion of the mediation.
Ethical Standards:
Ethical Standards for Mediators
Ethical Standards for Arbitrators & Neutral Evaluators
Roster of Neutrals:
Application to Join the Roster of Neutrals
First Judicial District (1JD) Roster
Re-designation of Commercial Division ADR Roster pursuant to the Rules of the Chief Administrator