Alternative Dispute Resolution for the 4th JD

ADR

More Information

Joanne B. Haelen, Esq., District Executive
New York State Unified Court System
4th Judicial District
65 South Broadway, Saratoga Springs, NY
jhaelen@nycourts.gov

Statement of Policy - City Court

It is the policy of the Unified Court System to encourage the resolution of civil legal disputes by methods including mediation, arbitration, neutral evaluation, in-court settlement practices, and summary jury trials. All civil actions or proceedings heard in the Supreme Court, Court of Claims, County Court, Family Court, Surrogate’s Court, District Court, City Court and New York City Civil Court shall be presumptively eligible for early referral to an alternative dispute resolution process unless otherwise excluded pursuant to this Plan. Courts may refer parties to an ADR process at any time after an action has been commenced and are encouraged to do so at the earliest appropriate opportunity.

 

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General Principles

The following principles apply to each and every specific court program:

1. All attorneys are reminded that it is their duty to discuss presumptive ADR with their clients and encourage same where appropriate.

2. Each plan provides litigants with at least one Court-based ADR option which will not require payment from them. No compensation shall be awarded to UCS employees serving as mediators.

3. All ADR facilitators must disclose any potential conflicts of interest.

4. Language access will be provided to litigants where required.

5. While it is presumed that all cases will participate in ADR unless good cause is shown why a particular case should be exempted, due to their nature, the following case types are presumptively excluded from ADR:
- Criminal actions and proceedings
- Cases involving domestic violence
- Ex parte matters
- Uncontested matters (except certain uncontested matrimonials)
- Pistol permit applications
- CPLR article 63-a proceedings
- Mental Hygiene Law Article 9, 10 and 81 Proceedings
- Habeas Corpus proceedings
- Election Law proceedings
- Abuse and Neglect proceedings
- Paternity proceedings
- Family Offense proceedings
- PINS and Juvenile Delinquency proceedings
- Termination of Parental Rights proceedings
- Proceedings where one of the parties is incarcerated

6. In a case to which presumptive ADR applies, the circumstances under which the Court may permit parties to decline to participate in one or more types of ADR include, but may not be limited to situations where:
a. participation could jeopardize a person’s health or safety;
b. a party may be a victim of physical, emotional or other abuse by another party;
c. a substantial power imbalance exists between the parties; or
d. any other occasion when the Court, for good cause shown, concludes that ADR would be imprudent.

 

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SUPREME COURT PROGRAM

 

A. NON-MATRIMONIAL CASES


Presumptive ADR is a recurring part of the case management process throughout the litigation.
• Preliminary conference: A preliminary conference will be scheduled for all contested cases within 45 days of the RJI filing.
∙ Preparation: The preliminary conference notice sent by the Court will direct the parties to confer, prior to the conference date, in an attempt to agree on one of the ADR options listed below and to work out a proposed timetable with the goal of the first ADR session occurring 12-16 weeks after the preliminary conference. The proposal shall also identify any discovery necessary to aid the ADR process and contain a timetable for its completion prior to the first ADR session.
∙ At the preliminary conference: At the preliminary conference, counsel (or the party, if self-represented) will discuss the proposed ADR plan with the assigned Judge, determine the “ADR Track” for the case and set a date for the first ADR session. Each appropriate case will be assigned to one of the following ADR Tracks:
1. Arbitration – compulsory
2. Mediation with court staff
3. Mediation with a Part 146 neutral
4. Mediation with a privately retained neutral
5. Neutral Evaluation by a Part 146 neutral
6. Settlement conference with Judge
7. Settlement conference with court staff (including a JHO)
8. Summary Jury Trial
∙ Preliminary Conference Order: At a minimum, the Preliminary Conference order will contain:
1. A discovery schedule, including an expedited discovery to aid in ADR, as warranted;
2. The ADR track;
3. A date for the first ADR session (generally 12-16 weeks from the preliminary conference);
4. A date for a “post-ADR status conference” (within 45 days after the first scheduled ADR session);
5. A date for filing dispositive motions; and
6. A date for filing the note of issue
7. Discovery: A discovery schedule will also be established during the preliminary conference. Discovery will not be stayed while the parties pursue ADR and the case will simultaneously proceed on its normal litigation track, alongside its ADR track.


Post-ADR Status Conference: If the ADR session does not completely resolve the case, a status conference will be conducted no more than 45 days after the first ADR session. This conference shall be attended by counsel, the parties and any other person who wields settlement authority. During this conference, additional ADR sessions or settlement conferencing will be scheduled by the assigned Judge, as warranted. Thereafter, the progress of ADR (further session dates and prospects of settlement) will be communicated to the assigned Judge every 45 days.

 

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B. MATRIMONIAL CASES


1. Contested Matrimonials
• Record Check: When a new contested matrimonial action is filed, the Clerk’s Office will do a record check through Web DVS and forward the results to the assigned Judge.
• Preliminary conference: A preliminary conference will be scheduled within 30 days of the RJI filing.
∙ Preparation: The preliminary conference notice sent by the Court will direct the parties to confer, prior to the conference date, in an attempt to agree on one of the ADR options listed below and to work out a proposed timetable with the goal of the first ADR session occurring 12-16 weeks after the preliminary conference. The proposal shall also identify discovery necessary to aid the ADR process and contain a timetable for its completion prior to the first ADR session At the preliminary conference: At the preliminary conference, counsel (or the parties, if self-represented) will discuss the proposed ADR plan with the assigned Judge, determine the “ADR Track” for the case and set a date for the first ADR session. Each appropriate case will be assigned to one of the following ADR Tracks:
a. Mediation with court staff
b. Mediation with a Part 146 neutral
c. Mediation with a privately retained neutral
d. Settlement conference with Judge
e. Settlement conference with court staff (including a JHO)
f. Neutral Evaluation by a Part 146 neutral (valuation issues only)
∙ Preliminary Conference Order: The Preliminary Conference order will contain:
a. A discovery schedule, including an expedited discovery schedule to aid in ADR, as warranted;
b. The ADR track;
c. A date for the first ADR session, which will occur no later than 12 weeks after the preliminary conference;
d. A date for a “post-ADR status conference” (within 45 days of the first scheduled ADR session);
e. A date for filing dispositive motions; and
f. A date for filing the note of issue.


1. Discovery: A discovery schedule will also be established during the preliminary conference. Discovery will not be stayed while the parties pursue ADR and the case will simultaneously proceed on its normal litigation track, alongside its ADR track.

• Post-ADR Status Conference: If the ADR session(s) do not completely resolve the case, a status conference will be held no more than 45 days after the last scheduled ADR session. This conference shall be attended by both counsel and the parties. During the conference, the assigned Judge will assess the progress of the case towards resolution and determine if additional, or a different ADR option will move the case towards settlement or will narrow the issues. If the Court finds additional ADR beneficial, the case will be returned for additional ADR sessions which will occur within 45 days, followed by a second status conference. If not, the Judge will limit the issues for trial, set a date for filing the note of issue and for trial.

2. Post-Judgment Applications: When a post-judgment application is filed, the Chief Clerk’s Office will perform a record check and forward the results to the assigned Judge, who will review it for presumptive ADR eligibility. If eligible, the Order to Show Cause will note that the parties must appear for mediation before a specially trained court attorney-referee on the return date. The assigned Judge will also issue an Order of Reference which contains a timetable for return to court.

 

 

3. Uncontested Matrimonials: Uncontested matrimonial filings which, following review by the Assigned Judge, reveal the presence of unresolved issues of custody/visitation, child support, equitable distribution and/or spousal maintenance, will be referred to a Court Attorney-Referee or the County’s CDRC for mediation. An Order of Reference will be issued and the case calendared for 60 days. If an agreement is received and is acceptable to the Court, it will be incorporated into the divorce judgment. If no agreement is achieved, the case will be scheduled for a conference before the assigned Judge.

C. RULES GOVERNING MEDIATION, ARBITRATION OR NEUTRAL EVAULATION: All persons assigned as mediators, arbitrators or neutral evaluators must abide by the Fourth District’s ADR Program Rules, including the conflict check provisions and confidentiality provisions.

 

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FAMILY COURT PROGRAM

The Family Court uses ADR at all stages of a proceeding and at each appearance. Settlement conferences will be held on the first court date by either the Judge, the Judge’s Court Attorney or, in some counties, a Court Attorney-Referee or JHO who are assigned to preside over dedicated first appearance parts for custody/visitation cases. If no settlement is reached, the case will be scheduled for further ADR within 45 days, using one of the following:
1. Mediation through a CDRC
2. Mediation with court staff
3. Mediation with a Part 146 neutral
4. Settlement conference with Judge
5. Settlement conference with court staff

CUSTODY/VISITATION DIVERSION PROGRAM:
In certain counties, custody/visitation cases are reviewed and referred to mediation prior to their first court appearance.

 

RULES GOVERNING MEDIATION BY NON-CDRC MEDIATORS: All persons assigned as mediators and are not affiliated with a CDRC, must abide by the Fourth District’s ADR Program Rules, including the conflict check provisions and confidentiality provisions.

 

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SURROGATE COURT PROGRAM

The District employs a designated Court Attorney-Referee to coordinate all ADR for the District’s Surrogate Courts. This attorney, who is trained in mediation, will supplement existing rosters and also serve as a mediator in cases referred for mediation.

The Surrogate Court uses ADR at all stages of a proceeding and at each appearance. During the first appearance in court, the assigned Judge or the Judge’s Court Attorney will conduct a conference to identify the issues, determine an appropriate ADR Track for the case and set a date for the first ADR session. Each appropriate case will be assigned to one of the following ADR Tracks:
a. Mediation with court staff
b. Mediation with a Part 146 neutral
c. Mediation with a privately retained neutral
d. Settlement conference with Judge
e. Settlement conference with court staff (including a JHO)

CITATION DAY REFERRAL PROGAM
Court staff who are trained in mediation will be onsite – either on the court’s scheduled citation return day calendars or, alternatively, on scheduled days each month, to handle “citation day referrals”. This process is designed to facilitate early resolution of those issues where the objections raised are non-legal in nature. For those cases that are not resolved through the citation day program, they will proceed along their identified ADR Track.

RULES GOVERNING MEDIATION: All persons assigned as mediators and are not affiliated with a CDRC must abide by the Fourth District’s ADR Program Rules, including the conflict check provisions and confidentiality provisions.

 

 

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CITY COURT PROGRAM

During the first scheduled court appearance for all Small Claims, Commercial Claims and Landlord/Tenant cases, the Judge discusses ADR with the parties and determines an appropriate ADR Track for the case. Each appropriate case is assigned to one of the following ADR Tracks:
a. Mediation through a CDRC
b. Mediation through another community agency
c. Settlement conference with Judge
d. Settlement conference with court staff

Volunteer or staff CDRC mediators, as well as community housing agencies, are onsite at the District’s nine City Courts during the court’s first appearance calendars to handle cases referred for mediation. If the mediation session cannot take place at court on the first appearance day, it is scheduled for an alternate day, but prior to the next scheduled Court appearance.

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INTERPRETATION SERVICES

If interpretation services are necessary, they will be arranged through the Chief Clerk’s Office and provided at no expense to the parties.

 

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