Start Spreading the News: Mandatory Mediation Comes to New York

By Lorraine M. Brennan, Esq.

As someone who started her legal career as a litigator, I, like many other litigators, viewed mandatory mediation with both skepticism and some suspicion.  When my client was sent to court-ordered mediation by a judge in the SDNY in the 1990s, I assumed that my adversary and I would merely tick the “attendance” box and return to the judge to let him know that mediation had failed to resolve our complex dispute.  But it was not to be.  Our mediator, a retired partner from a prestigious law firm, literally saved the day.  He pointed out to both sides the risks inherent in going to court.  Weaknesses in my case that I had dismissed as minimal were suddenly food for thought—who really knew what a jury might do?  Similarly, my adversary had his eyes opened to the fact that his case, while not completely frivolous, was quite weak and that he stood to lose it all if he insisted on going to court.  The mediator spent the entire day with us, and at the end of it, we had a fair and reasonable settlement that both sides could live with.  We saved time, money and a lot of unnecessary hostility on both sides.  I became a believer in the process.  It worked.

Thus, when I learned that the “The Chief Judge’s Task Force on Commercial Litigation in the 21^st Century” had issued a June 2012 report recommending a pilot project that called for one in five commercial cases to be sent to mediation, I was enthusiastic.  The pilot program is set to begin on July 28, 2014, and will apply to cases in the New York County Commercial Division only.  The pilot is scheduled to run for 18 months, to give the users and the courts time to assess its efficacy and to determine if the program should be expanded to other counties.  The program has some flexibility, including an “opt out,” or exemption on good cause shown.  While undoubtedly there will be some resistance, my belief is that many parties who go through the mediation process will be satisfied with it and will return—even voluntarily—to mediate other matters.  When mediation works, it is a “win” for the client.  A matter that might spend years in the court system can often be resolved in a day or two, thus saving the client considerable time, money and the inevitable business disruption that a litigation brings.  The solutions reached in mediation can be innovative and creative, and in many cases serve the clients in a better fashion than a judicial decision.

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