Automatic Court Annexed Mediation in New York s Federal Courts. A Template for the future of ADR?

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1 Automatic Court Annexed Mediation in New York s Federal Courts A Template for the future of ADR?

2 Panel Moderator: Gary Shaffer, Esq., Shaffer Mediation Panelists: Honorable William Skretny, Western District of NY Michael Menard, Esq., Western District of NY Mediator John E. Higgins, Esq., Jackson Lewis Kathleen Scanlon, Esq., Chief Circuit Mediator, 2d Cir.

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4 PAST AS PROLOGUE, Part 1 Judge Skretny, September 8, 2005 The pilot project which brings you here is perhaps the most important undertaking of our court over the course of the last decade. The ADR plan you received in your packets is exciting, innovative and simple.

5 PAST AS PROLOGUE, Part 2 Judge Skretny, December 8, 2012 at U. of Buffalo Law School Our program s success rate has exceeded more than 70% each year since And, in my federal-centric, provincial view, it is because we have a cutting-edge program, befitted by the simplicity of a very concise, fifteen-page ADR plan. Since the inception of the ADR program, the number of civil case terminations in the Western District went from a relatively dismal 29th in the nation to being the 8th highest district in number of civil case dispositions in the country as of 2011.

6 The program was so successful that In 2011 the initial class of 24 mediators in Buffalo was doubled, and then the program expanded to Rochester. It now covers 17 counties, ranging from the Canadian border to the Pennsylvania state line and east to almost Syracuse.

7 ADR Plan Western District of New York 2.1 REFERRAL TO ADR A. New Cases. All civil cases filed on and after [January 1, 2006] shall be referred automatically for ADR. Notice of the ADR requirements will be provided to all parties immediately upon the filing of a complaint and answer or a notice of removal. ADR intervention will be scheduled at the conference held pursuant to Local Rule of Civil Procedure The following categories of actions are exempted from automatic referral:

8 Automatic Exemptions Habeas Corpus and extraordinary writs; Applications to vacate a sentence; Social Security appeals; Bankruptcy appeals; Cases implicating issues of public policy, exclusively or predominantly; IRS summons enforcement actions; Government foreclosure actions; Civil asset forfeiture actions; and Prisoner civil rights actions.

9 How well does it work? 4,812 - Cases automatically designated as ADR cases. 3,011 - Enter program i.e., are not dismissed by motion, withdrawn, or opt out. 1,239 - Settled pre mediation without mediator being assigned. 1,563 Completed mediation. 1,121 (71.2%) Settled at mediation or within 60 days after last session 422 do not settle. 209 Settled > 60 days after last mediation session (not attributed to mediation for statistical purposes).

10 Summary: 71.2% of cases that go to mediation are settled through mediation (1121/1563). 78% of cases in program ( /3011) are settled prior to mediation or within 60 days after last mediation session, i.e., 78% of cases require almost no court involvement beyond clerical work. Program expanded to Rochester on July 1, 2012; 913 Cases automatically designated as ADR through June 30, 2014.

11 What about Self-Determination? 2.2 RELIEF FROM ADR REFERRAL A. Opting Out Motions. Any party may file, with the assigned Judge for that case, a motion to opt out of, or for relief from, ADR. Less than 5% seek to opt out. Motions granted in very limited instances

12 Mediator Compensation 5.3 COMPENSATION OF MEDIATORS A. Mediators shall receive $150/hour for the first two hours of the initial mediation session. Thereafter, Mediators shall receive no more than their Court-approved hourly rates for time spent in mediation and preparation. B. Mediators may require that counsel and/or parties sign an agreement confirming the terms of retention and compensation. C. Mediator fees shall be divided equally among all separately represented parties, unless otherwise agreed or ordered by the Court.

13 Northern District New York Adopted same mandatory program as Western District effective January 1, All civil cases filed on and after [January 1, 2014] shall be referred automatically in the Pilot Mandatory Mediation Program. Notice of the Pilot Mandatory Mediation requirements will be provided to all parties immediately upon the filing of a complaint and answer or a notice of removal. ADR intervention will be scheduled at the conference held pursuant to Local Rule of Civil Procedure 16.1.

14 Northern District Program Made Permanent General Order #47, Mandatory Mediation Program So Ordered, May 23, 2016 by Chief U.S. District Judge Glenn T. Suddaby

15 Mediator Compensation 5.3 COMPENSATION OF MEDIATORS Mediators shall receive $150/hour for the first two hours of the initial mediation session. This cost includes any necessary preparation time spent by the Mediator in preparing The parties and mediator may agree to pay for initial preparation costs beyond the $ per-hour rate for the first two hours of mediation in complex cases. However, any such agreement should be done without the involvement of the Court. Hourly rates may not exceed $ per hour. The rate caps will be reviewed by the Court every two years. Mediator fees shall be divided equally among all separately represented parties, unless otherwise agreed or ordered by the Court.

16 Northern District Data Data from January 1st, 2014 to December 6, 2016 Number of cases in the Mandatory Mediation program completed during this time frame: 585 Number and Percentage of cases that were Settled through Mandatory Mediation: 209 (36%) Number and Percentage of cases that did not Settle through Mandatory Mediation: 334 (57%) Number and Percentage of cases where Mandatory Mediation has begun but has not yet been completed during this time frame: 42 (7%) But: Not included in these statistics are the cases that were resolved prior to mediation or within 60 days of mediation. Printed from the NDNY s website at on 12/11/2016

17 SDNY AUTOMATIC REFERRAL PROGRAM Governed by Local Rule 83.9 and Mediation Program Procedures. Since 2011 SDNY has had automatic referrals of majority of 1983 cases against NYPD and non-pro se employment cases (except those filed under Fair Labor Standards Act (FLSA). Allows for mediation at early stages of litigation process before discovery. Cases enter Mediation Program either through automatic referral or by referral of a specific case from assigned judge.

18 SDNY UPDATES 2014: SDNY adds pro-se employment cases to automatic mediation program. 2016: SDNY adds FLSA cases to automatic mediation program, and includes prescribed discovery for both sides.

19 SDNY RESULTS 2014: 1011 cases referred into Program, including 223 referrals from individual judges, an increase of over 100 non-automatic referrals since Of the 1011 cases referred in 2014, 828 were successfully resolved either at or before the mediation: Automatic Employment: 50% Pro Se Employment: 68% Referrals from Individual Judges (non pro se employment): 65% 1983 Plan: 76% SDNY Mediation Program Annual Report, 2014, Issued March 23,

20 SDNY MEDIATOR COMPENSATION $ (confirmed to a degree of accuracy > than the value of Pi)

21 EDNY MEDIATION PROGRAM Not automatic. Cases referred to program by judges and magistrates. FY 2016: 221 cases referred to mediation Mediation completed in 149 cases: 100 (67%) settled. 24 cases settled before mediation held. 38 still pending. 10 did not proceed due to stay in proceedings or motions. Settlement rate of cases that entered mediation program 124/173 = 71.6%

22 EDNY Calendar Year 2016 Number of cases referred to mediation doubled.

23 EDNY AUTOMATIC ARBITRATION PROGRAM Local Civil Rule Court-Annexed Arbitration (Eastern District Only) (d) Civil Cases Eligible for Compulsory Arbitration. (1) The Clerk of Court shall, as to all cases filed after January 1, 1986, designate and process for compulsory arbitration all civil cases (excluding social security cases, tax matters, prisoners civil rights cases and any action based on an alleged violation of a right secured by the Constitution of the United States or if jurisdiction is based in whole or in part on Title 28, U.S.C. 1343) wherein money damages only are being sought in an amount not in excess of $150, exclusive of interest and costs.

24 EDNY MANDATORY ARBITRATION RESULTS 129 cases referred to EDNY court-annexed arbitration program between July 1, 2015 and June 30, % of cases are referred into the arbitration program by the EDNY Arbitration Clerk, who screens each civil case filed in the EDNY for eligibility for the arbitration program. The remaining 3% of referrals to arbitration are issued by Magistrate Judges on a case-by-case basis. Of the cases referred to a program where an arbitration hearing was scheduled, 65% were voluntarily dismissed prior to the administration of the arbitration hearing. As of the publication of this report, 33% of cases are still pending and 2% of cases have proceeded to an arbitration hearing Annual ADR Report, available at

25 Moses the Lawgiver - ca BCE (precedes Judge Skretny) Deut 30: 11-14: 11 Surely, this Instruction which I enjoin upon you this day is not too baffling for you, nor is it beyond reach. 12 It is not in the heavens, that you should say, "Who among us can go up to the heavens and get it for us and impart it to us, that we may observe it?" 13 Neither is it beyond the sea, that you should say, "Who among us can cross to the other side of the sea for us and take it for us, so that we can listen to it and do it?" 14 No, the thing is very close to you, in your mouth and in your heart, to do it.

26 EPILOGUE:

27 IF YOU BUILD IT THEY WILL COME