AN OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution, commonly referred to as ADR, is an important component of Chief Judge Janet DiFiore’s Excellence Initiative. Litigation is a costly, time consuming and emotionally draining process. Even if you are “successful” and obtain a favorable decision from a trial court after years of fighting, you face the prospects of defending appeals and trying to collect on any judgment rendered. While most court cases ultimately settle, typically such resolutions are reached after parties have battled for extended periods. After considering the costs and delays of protracted litigation, parties are often left feeling unsatisfied with what they receive in a settlement.
Is a lengthy fight in court worth its ultimate cost? In most cases, effective earlier discussions between the parties can yield a more economical resolution. Alternatives to conventional litigation undeniably help parties resolve their disputes more quickly and less expensively.
Our Bronx County Surrogate, the Hon. Nelida Malavé-Gonzalez, is fully committed to developing and implementing a presumptive ADR program for her court that will result in high settlement rates and participant satisfaction. All litigants should be prepared to have their cases referred to some form of ADR.
ADR has been traditionally implemented in the Bronx County Surrogate’s Court through conferences with members of the Court’s Law Department. Such conferences will continue to be an integral part of the Court’s ADR program, occurring early and frequently during the litigation process. The Surrogate, in conjunction with her Supervising Court Attorney, shall assign cases to Court Attorney-Referees and the Principal Law Clerk for conferences/ADR intervention. Mediation will be a new ADR method utilized by the Court.
As stated in the Interim Report and Recommendations of the Chief Judge’s ADR Advisory Committee (2/12/19), experience in New York and elsewhere indicates that well-managed, court-sponsored mediation programs can achieve high settlement rates and can particularly advance efficient dispute resolution when the mediation takes place shortly after the litigation has commenced. High quality mediation can dramatically reduce the time and cost of dispute resolution to all of the parties and the judicial system compared to conventional litigation. Mediation also enhances parties’ sense of personal agency and self-determination in pursuing a resolution, improve parties’ communications with each other and understanding of each other’s positions, permits consideration of important personal dynamics apart from the dispute’s legal merits, provides opportunities for understanding alternative outcomes, encourages effective approaches to litigating efficiently or achieving workable and mutually acceptable resolutions and fosters parties’ sense that they have received procedural justice.
WHAT IS MEDIATION?
Broadly speaking, mediation is a process of assisting the negotiations of others. More specifically, mediation is a collaborative, 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. In this process, parties have an opportunity to communicate with each other, focus on what is important to them and to come up with individually tailored solutions. During mediation, each party relates his or her understanding of the dispute. The Mediator may ask the parties clarifying questions, but the Mediator will not give legal advice or force solutions on the parties.
The five pillars of mediation are voluntariness, self-determination, neutrality, confidentiality and enforceable agreements.
Voluntariness. Mediation is a voluntary process. The parties are free to accept or reject a resolution of the case.
Self Determination. The parties decide for themselves and by themselves as to how they wish to resolve the dispute.
Neutrality. Negotiations are assisted by third party facilitator who is unbiased and does not take a side.
Confidentiality. Unlike in litigation, which can be very public, what happens in the mediation remains confidential and may not be disclosed outside of the room.
Enforceability. The mediation settlement is a legally binding and enforceable agreement.
Mediation often involves non-legal as well as legal issues. Parties are strongly encouraged to participate in mediation with their own attorneys. Parties may also choose to attend sessions without counsel, if all participants agree. Although the mediation process can, and often does, result in an agreement, whether to reach an agreement, and on what terms, is always up to the parties themselves.
THE BRONX COUNTY SURROGATE’S COURT MEDIATION PROGRAM
Mediations in the Bronx Surrogate’s Court may occur in the courthouse, or they may take place virtually through videoconferencing platforms such as Business Skype, or even by telephone. The process can result in enormous savings of time and money, reduce stress and create longer lasting agreements. If you would like further information regarding the Court’s Mediation Program, please contact its ADR Coordinator at 718-618-1332. You can click on the following links if you wish to view the Court’s Mediation Program Rules or the Court’s Roster of Mediators.