Alternative Dispute Resolution for the 7th JD

ADR

ADR CONTACT INFORMATION

7th Judicial District Administrative Judge

Hon. William Taylor

Counties: Monroe, Wayne, Livingston, Ontario, Yates, Steuben, Cayuga, Seneca

ADR Coordinator

Amy L. DiFranco, Esq.
7th Judicial District
Hall of Justice, Room 231
Rochester, New York  14614
adifranc@nycourts.gov

 

Statement of Policy

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, Family Court, Surrogate Court and City Court of the 7th JD shall be presumptively eligible for early referral to an Alternative Dispute Resolution (“ADR”) 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 time. If you have a matter that is currently pending in the Seventh Judicial District that you would like considered for reference to ADR, or if you have a question concerning ADR in the Seventh Judicial District, please contact the ADR Coordinator.

back to top

GETTING YOUR CASE INTO MEDIATION

The 7th Judicial District employs a team of Supreme Court Mediators, Adrian J. Burke and Amy DiFranco, who are certified mediators and provide full mediation services at no cost to the litigants. All cases pending in NYS Supreme Court are eligible for referral to the Mediation Part at any stage of litigation and our Court Mediators are qualified to handle all cases pending in the Civil and Commercial Parts. When parties are ready to mediate, one party must file an RJI (if not already filed) and the assigned judge will issue an Order of Referral to the Mediation Part.  

Alternatively, all parties may execute and file this Consent to Mediation form in NYSCEF, which will prompt the assigned justice to issue an Order of Referral to Mediation without the need for a judicial conference. A Court Mediator will then contact you to proceed with the mediation.

Upon the Mediator’s Receipt of a Judge’s Order of Referral:

  • Initial conference is held with attorneys to discuss the mediation process and to evaluate the case for suitability for mediation.
  • Mediation is held at which counsel and parties are present. Due to COVID-19, all mediations are currently being conducted virtually using Microsoft Teams. We are having tremendous success with virtual mediation and we encourage all counsel and parties to engage in the process.

When is the Case Ready for Mediation?

  • The Court encourages presumptive mediation, meaning mediation at an early stage or any stage of litigation when the parties are prepared to negotiate a resolution of their case. Discovery need not be completed but the parties should have sufficient information about the case and their goal must be to resolve the case at mediation.

What are the Costs?

  • Court Mediation is a free service. Court Mediators provide no-cost, full mediation services to litigants.

Contact Us

Adrian J. Burke,
Court Mediator
aburke@nycourts.gov
(585) 371-3656

Amy L. DiFranco,
Court Mediator
adifranc@nycourts.gov
(585) 371-3680

back to top

7th JD MEDIATOR PANEL

In addition to free Court Mediators, the District maintains a panel of private mediators who are certified under Part 146 of the Rules of the Chief Administrative Judge.  These mediators offer mediation at rates set by the Court.  You may use the Statewide Mediator Directory to view a full list of mediators on the 7th JD Panel. You can also narrow the search results by:

  • Case type experience
  • Languages spoken
  • Whether online mediation is offered
  • Whether the mediator is an attorney

You may also search by name.

 

Call for Mediators and Neutral Evaluators

The 7th Judicial District serves a wide variety of litigants, including persons of varying age, race, ethnicity, national origin, gender, sexual orientation, physical or mental ability, religion, socioeconomic and family status. The District’s multiple Mediation Programs recognize that neutrals with a wide variety of cultural and life experiences enrich the alternate dispute resolution process by bringing diverse perspectives to resolving disputes. To accomplish these goals, it is important that the 7th JD Mediation Panel attract and retain neutrals who represent a range of personal and professional backgrounds who can, thereby, better serve and instill confidence in participants in the alternate dispute resolution process. To that end, qualified applicants of all diverse backgrounds and experiences are encouraged to apply for admission to the Mediation Panel in the 7th Judicial District.

Mediator Requirements

To be eligible to join the Panel as a Mediator, a person shall satisfy the training and experience requirements of Part 146 of the Rules of the Chief Administrative Judge as follows:

  • All Court Panel Mediators shall have received at least 24 hours of basic mediation training, 16 hours of additional training in the specific mediation techniques applicable to specific subject areas of the types of cases referred to them.
  • In addition, all Court Panel Mediators shall have recent experience mediating actual cases in the subject area of the types of cases to be referred to them. Mediation experience can be achieved by mediating at least three (3) court cases in a New York State court, or by completing a Court Mediation Apprenticeship.
  • A Court Mediation Apprenticeship shall include observing at least one (1) mediation, regardless of case type; co-mediating three (3) Court cases in the subject area of the types of cases to be referred to them and debriefing all observations and mediations with a court panel mediator or ADR Program Contact; and evaluation by a court panel mediator or ADR Program Contact.
  • All Court Panel Mediators must attend six hours of approved Continuing Education relevant to mediating in their respective practice areas every two years.

Fulfillment of these requirements does not guarantee acceptance onto the Panel. Final placement on a Panel or continuation on a Panel is in the discretion of the District Administrative Judge under Part 146 of the Rules of the Chief Administrator.

Apply now: Mediator Application Form

Eligibility and Application Instructions

Statement of Policy for Mediator Panel

Fee Structure for Mediator and Parties

The Court itself does not charge or administer fees for mediation. If the parties choose to retain a private mediator from the court’s Mediator Panel, then the fee structure agreed upon between the private mediator and the parties will apply within the following mandates:

  • Court Panel Mediators shall not be compensated for administrative tasks.
  • No charge for the first hour of preparation time. If necessary, $150.00 per hour for up to two hours of additional preparation time for matters requiring substantial preparation; and thereafter no charge for the first hour of the initial mediation session, then no more than $325.00 per hour for additional time spent in mediation.
  • If the mediation session is cancelled by any party less than 48 hours prior to the scheduled mediation session or a party fails to appear at the mediation session, the cancelling or non-appearing party shall compensate the Mediator a fee of $250.00. Compensation exceeding $1,500 is subject to prior Court approval.
  • The Mediator’s fee shall be agreed upon in writing by all parties prior to the mediation and the mediator shall specifically make parties aware of the applicable fee schedule. The Mediator’s fee shall be divided equally among all separately represented parties, unless otherwise agreed or ordered by the Court. Persons who have been granted “poor person” status by the Court are not required to contribute to the mediator’s fee. Another party may agree to pay all or most of the mediation costs if a party cannot afford the fee and/or has been granted “poor person” status by the Court.

Mediator fees shall be paid by the parties within fourteen (14) days of the conclusion of mediation.

 

back to top

ADR Programs by court type:

Family Court | City Court | Surrogates Court | Supreme Court

back to top

FAMILY COURT

What cases are eligible: Custody; Visitation; Family Court Act Article 4 and Article 6 matters; Article 10 Child Welfare matters; and Permanency matters where Article 10 case is pending.

Type of ADR: Presumptive ADR; settlement conferencing by Judge and Court Attorney-Referees; mediation by mediators trained by the NYS Child Welfare Court Improvement Project (CWCIP) to specifically mediate child protective matters; and mediation by the Center for Dispute Settlement (CDS).

Process: Custody and visitation cases will be screened at intake for eligibility by the CDRC serving that county. (link to contact information below)Custody and Visitation cases will be screened at intake for eligibility by the CDS office serving that county.  CDS can be reached at https://www.cdsadr.org/

If case remains eligible after screening, mediation will either occur at that time or be scheduled thereafter.  Agreements reached in mediation through CWCIP and CDS will be sent to the Family Court Judge for approval. 

Exempt from ADR: PINS, Juvenile Delinquency proceedings, Cases with Domestic Violence/ Cases with incarcerated litigants/ Adoptions

back to top

 

CITY COURT

What cases are eligible: Small Claims cases and Commercial claims in all City courts in the 7th JD.

Type of ADR: Mediation, arbitration and settlement conferencing

Process:

Rochester City Court: Judges actively engage in settlement conferencing with parties to all civil actions and summary proceedings at an initial appearance in an attempt to reach an amicable resolution.  All Small claims and Commercial claims under $6,000 are arbitrated with Court Attorney-Referees with the reserved right of a trial de novo before a City Court Judge.  Parties can also elect to submit their dispute to a private mediator with costs to be paid by them.

Auburn, Canandaigua, Corning and Hornell City Courts: All civil actions and summary proceedings are conferenced with the court at an initial appearance in an attempt to reach an amicable resolution. Parties can also elect to submit their dispute to a private mediator with costs to be paid by them.

The Legal Aid Society of Rochester, NY provides Housing and Consumer Law attorneys and advocates to assist low income tenants facing eviction in Rochester City Court.  In partnership with Empire Justice Center, Volunteer Legal Services Project, and Legal Assistance of WNY they also offer foreclosure prevention services in the following counties: Monroe, Genesee, Livingston, Ontario, Orleans and Wayne.  For more information, visit their website or contact them at https://www.lasroc.org/housing-and-consumer-law or (585) 232-4090.

back to top

 

SURROGATES COURT

What cases are eligible: all estate settlements.

Type of ADR: Settlement conferencing with Surrogate or Court Attorney; and Mediation with a private mediator chosen and paid for by the parties.

Exempt from ADR: 17A Guardianships, Adoptions, Appointment of a Guardian Ad Litem, Kinship hearings

back to top

 

SUPREME COURT

1. Supreme Court Civil and Commercial Divisions (all counties) – Torts, Commercial, Medical Malpractice cases

Type of ADR/Process:

Mediation:  Judge refers case to a 7th JD Court Mediator with the parties’ consent or the parties elect private mediation at their expense.

Neutral Case Evaluator: Appointed by the judge at the parties’ request or parties elect private neutral case evaluation at their expense

Settlement conference before the Assigned Judge

Arbitration: a private arbitrator paid for by the parties

Process: The parties must reach an agreement on the specific type of ADR to be utilized.  If the parties fail to reach an agreement, the case will continue to trial. 

2. Supreme Court - Contested Matrimonials

Cases eligible: all contested matrimonials

Cases exempted:

a. Where an Order of Protection has been issued.

b. Family Offense petition filed

c. Case part of the Integrated Domestic Violence Court

Type of ADR/Process:

Settlement Conference: The assigned judge or Court Attorney-Referee holds a preliminary conference within 45 days, during which ADR is discussed and attorneys are required to discuss the issues with their clients.  Parties are also provided with a brochure for CDS, offering divorce and custody/visitation mediation and other ADR services.  If agreement for ADR is reached, the Court will issue a written order specifying the issues and directives for mediation or other ADR options.  The Court may refer the matter to a Court Attorney-Referee or private mediator at the parties’ request. 

The Court may determine that certain cases are ineligible for mediation, such as where (1) participation could jeopardize a person’s health or safety; (2) a party may be a victim of physical, emotional or other abuse by another party; (3) a substantial power imbalance exists between the parties; or (4) the Court concludes that mediation or other ADR would be imprudent. 

Where a party seeks pendente lite relief by order to show cause, the Court will consider ADR options on the return date in addition to granting any appropriate pendente lite relief. 

Community Dispute Resolution Centers

Each county in the 7th JD is serviced by the Center for Dispute Settlement, which can be contacted through their website at https://www.cdsadr.org/ or by phone at (585) 546-5110.

 

back to top

WHAT IF I NEED AN INTERPRETER?

The New York State court system provides foreign language interpreters and sign interpreters for non-English speaking persons and those who are hearing impaired, free of charge, to ensure that all parties can clearly understand the proceedings and are able to effectively participate in all forms of ADR. 

 

back to top

Presumptive ADR

In a presumptive Alternative Dispute Resolution (ADR) referral model, parties are referred early on to utilize some form of ADR such as arbitration, mediation, neutral evaluation, or settlement conferencing. The presumptive referral should preferably be done early in the court process, before costs rise and positions harden. Whenever possible, referrals are based on predetermined case characteristics, rather than on a case-by-case basis. However, a referral can occur at any stage in a case. While the Court presumes that certain case categories are appropriate for some form of Alternative Dispute Resolution, plans include some provision for parties to opt-out often for good cause. Also, case intake and screening further support party safety and assessment of case appropriateness for presumptive ADR.

ADR can include a variety of processes, such as settlement conferencing with the court and court staff, mediation with a court connected or private mediator, mediation through a local Community Dispute Resolution Center (CDRC), Arbitration, Neutral Evaluation and other customized processes.

back to top

Types of ADR

Alternative Dispute Resolution (ADR): ADR stands for alternative dispute resolution – a variety of processes that help parties resolve their dispute without a trial.

Arbitration: Arbitration is a process where disputing parties agree that one or several individuals --- the arbitrators --- can make a decision about the dispute after receiving evidence and hearing arguments. The arbitrator has the authority to make a decision about the dispute. The process may be similar to a trial in that the parties make opening statements and present evidence to the arbitrator; however, it is usually less formal and is often faster. Arbitration may be binding or non-binding, which depends on either an agreement between the parties or any applicable law in this area, depending on the jurisdiction involved. In binding arbitration, parties agree to accept the arbitrator’s decision as final. In nonbinding arbitration, the parties may request a trial if they don’t accept the arbitrator’s decision.

Mediation: Mediation refers to a confidential dispute resolution process in which a neutral third party --- the mediator -- helps parties identify issues, clarify perceptions, and explore options for a mutually acceptable outcome. The mediator does not decide the case but helps the parties to resolve the dispute themselves. Mediation seeks to ensure that the parties arrive at a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Attorneys are strongly encouraged to participate in mediation, and in some contexts, may be required to participate. Mediation may be inappropriate if a party has a significant advantage in power or control over the other.

Presumptive Mediation: In a presumptive mediation referral model, parties are referred to mediation at some point in the court process, preferably early, before costs rise and positions harden. Referrals are made to mediation based on predetermined case characteristics, rather than on a case-by-case basis, wherever possible. Mediation referrals include a provision for parties to opt-out, while case intake and screening further support party safety and assessment of case appropriateness for mediation.

Neutral Evaluation: Neutral evaluation is an ADR process where the case is referred to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute. Early Neutral Evaluation (ENE) may take place soon after a case has been filed in court. If this process occurs early, it may be referred to as Early Neutral Evaluation. Regardless, a court may refer the case to ENE or the parties may mutually agree to this process. The parties either submit written comments or meet in person with the expert. The expert identifies each side’s strengths and weaknesses and provides an evaluation of the likely outcome of a trial. This evaluation can assist the parties in assessing their case and may propel them towards a settlement. Often, the expert’s opinion may be of great significance to one or more parties as it may serve to confirm the evaluation of the case by that party’s attorney.

Settlement Conferencing: Settlement conferences are similar to mediation in that a third-party neutral assists the parties in exploring settlement; however, these conferences are usually conducted by a judge or court attorney and generally focus on the attorneys and their legal arguments. A settlement conference is an important case management tool and is usually shorter than a mediation session and provides fewer opportunities for direct party participation and for consideration of non-legal interests that may be driving the conflict.

Community Dispute Resolution Center: (“CDRC”): The NYS Unified Court System partners with local non-profit organizations known as CDRCs to provide mediation and other dispute resolution options as an alternative to, or in conjunction with, court. CDRCs help litigants resolve a wide range of family court disputes involving parents and children as well as child custody and visitation issues. CDRCs can also assist in City Courts to provide mediation and other dispute resolution options in Small Claims and Landlord/Tenant disputes.

Summary Jury Trials: A summary jury trial is a one-day trial in which attorneys for each party present a shortened version of the case in a real courtroom before a jury. It is similar to arbitration except that a jury decides factual issues and renders a verdict as a jury would in a traditional trial. The trial may be either non-binding or binding, depending on the agreement of the parties and order of the court. Damages can be floored and capped on a high/low basis by agreement of counsel. The verdict is frequently helpful in getting a settlement, particularly where one of the parties has an unrealistic assessment of the case.

back to top

 

What notice will I receive about whether my case will be referred for a form of ADR?

Some courts have begun to notify parties that they are to attend an ADR session by a written order. Other courts are orally directing parties to some form of ADR and sometimes your local Community Dispute Resolution Center (CDRC) may reach out to you by email or phone at the request of the court to schedule a meeting. This determination is made by each court based on case type and the resources available.

 

 

back to top

 

 

STATEMENT ABOUT FEE STRUCTURE FOR BOTH THE MEDIATOR AND THE PARTIES

The Court itself does not charge or administer fees for mediation. When the Court refers a mediation eligible case to a Court Attorney Referee, there is no fee for the parties.  If the parties choose to retain a private mediator off the court’s roster of approved mediators, then the fee structure agreed upon between the private mediator and the parties will apply within the following structure.

Court roster Mediators shall not be compensated for preparation time or administrative tasks.  Unless otherwise agreed to by the parties, the mediator shall bill, starting with the initial mediation session, at an hourly rate of no more than $350.00/hr. for their services.  Mediator fees shall be divided equally among all separately represented parties, unless otherwise agreed to by the parties or ordered by the Court.  For example, a person granted “poor person” status by the Court would not have to contribute to the mediator’s fees.  When a case is co-mediated by two Court Roster Mediators, the mediators shall split the set hourly rate.  Court Roster Mediators can assist in a broad range of cases including matrimonials, personal injury cases, commercial claims and estate matters.

back to top