The Commercial Division in New York County Supreme Court operates the Commercial Division Alternative Dispute Resolution Program. The Program is basically a mediation program, in which neutrals meet with the attorneys and parties in Commercial Division cases, review the facts and legal issues presented by the case, and attempt to facilitate discussions between or among the parties and their attorneys and explore the possibility of settlement. Upon the directive of the Administrative Judge, commercial cases from outside the Division may become eligible for inclusion in the ADR Program. By Administrative Orders dated May 24, 2016 and April 19, 2017, commercial cases from certain Parts outside the Division may be referred to the Program.
Cases are referred to the Program by Order of Reference of the assigned Commercial Division Justice or authorized non-Division Justice. Determination of the cases that should be referred and the appropriate time at which to refer them are matters for the discretion of the assigned Justice. Generally, the Program prefers to receive cases early in their life so that a settlement may be explored before the parties have spent large sums in the discovery process.
When an Order of Reference is signed by a Justice, the parties are required to participate in mediation in accordance with the Rules and Procedures of the ADR Program. Settlement, however, is, of course, purely voluntary.
The court maintains a roster of neutrals, who are required to have training in mediation (see the Guidelines in Part 146 of the Rules of the Chief Administrative Judge). There are over 250 neutrals on the court's roster.
Pursuant to the ADR Rules and Procedures, when a case is referred by order of the assigned Justice, a mediator is designated from the roster by the ADR Coordinator, subject to the right of the parties to choose another one.
The first ADR session must take place within 30 days from the date the mediator is confirmed by the Coordinator, and the process is to conclude within 45 days from that date. The litigation is not stayed during the mediation process unless the court so directs, which occurs very rarely. No later than ten days prior to the first ADR session, each party must submit to the mediator a memorandum setting forth the party's opinions as to the facts and issues in the case, contentions, and suggestions as to the bases on which the case might be settled.
Once a mediator has been designated, the mediator will typically confer with counsel by phone as to scheduling and will then review submissions of the parties required by the Rules and Procedures. Attendance of the parties and counsel is mandatory for the first three hours of the ADR process. During the mediation, the mediator will meet with all parties and attorneys in joint sessions, during which they discuss the facts and issues and the positions of the parties. The mediator will from time to time also meet separately with each party or party representative and the attorney therefor in what are called "caucuses," which allow the mediator to explore the demands of the parties and their reactions to the discussions in the joint sessions.
The Rules and Procedures provide for additional time to mediate if the matter is not resolved at the first session. Generally, the ADR Coordinator may, without court intervention, allow an additional 30 days, that is, up to 75 days from the confirmation date.
Pursuant to the Rules and Procedures, the mediation process is confidential and communications therein are not to be revealed outside of the ADR process. The mediator shall not be required to testify later about what happened at the mediation. Confidentiality is intended to promote frank discussion at the mediation and to ensure that nothing a party says in mediation may adversely affect the party's case in court should the mediation fail to resolve the dispute.
There is no charge to the parties for three hours of mediation, nor for the mediator's time expended in preparation for the mediation session(s). If the mediation process continues beyond the three hours, the parties must compensate the mediator at a rate fixed by the ADR Rules and Procedures or another rate if agreed upon.
Certification Relating to ADR
Commercial Division Rules 10 and 11 were amended effective January 2018 to require counsel for any party in Division cases to serve and file, and to submit at the preliminary conference and each subsequent compliance conference, a Certification (a court system form) stating that counsel has discussed with the party the availability of ADR mechanisms provided by the Division and/or private providers and indicating whether the party is at present willing to pursue mediation at some point during the litigation. The preliminary conference order shall contain, as appropriate, provisions for means of early disposition of the case, such as ADR, including, in all cases in which the parties’ Certifications indicate their willingness to mediate, a specific deadline for the identification of a mediator.
The Certification form can be accessed below under “Forms."
Commercial Division Pilot Project (2014-16)
Effective July 28, 2014, cases were referred to a Mandatory Mediation Pilot Project pursuant to an Administrative Order of the Administrative Judge for Civil Matters of the First Judicial District. In this project, each week, every fifth Commercial Division case in which a Request for Judicial Intervention was filed during the previous week was designated for referral to the Pilot Project for mediation. By order of the Adminstrative Judge, this experiment concluded effective February 1, 2016.
Mandatory Mediation Pilot Project for Certain
Commercial Cases Outside the Commercial Division
By Administrative Order of the Administrative Judge of this court dated April 19, 2017, a pilot project (“the Non-Division Pilot Project”) was established in which certain commercial cases not assigned to Commercial Division Justices are automatically referred to mandatory mediation in the ADR Program in accordance with the Rules and Procedures thereof. Originally, the cases in the Non-Division Pilot Project were newly-filed commercial cases (excluding those in which a self-represented person is a party) assigned to a Justice outside the Division and in which the filer of the Request for Judicial Intervention (“RJI”) designated the matter as a “Contract” case on the RJI and sought a preliminary conference. Before deciding to institute the Non-Division Pilot Project, the Administrative Judge reached out to interested Bar groups and solicited comments and suggestions. The responses received were favorable to the proposed plan for this project.
Subsequently, by Administrative Order of the Administrative Judge of this court dated January 22, 2019, cases eligible for the pilot project were expanded to include those designated as "Business Entity," "Insurance," "UCC" and "Other Commercial" matters on the RJI.
Under the Administrative Orders, the staff of the court shall identify all such cases at the time of the filing of the RJI and assignment of the case to a Justice. In each such case, the staff shall transmit to counsel through the New York State Courts Electronic Filing System (“NYSCEF”) a Notice of Referral to Mandatory Mediation together with a copy of the January 22, 2019 Administrative Order directing the parties to proceed to mandatory mediation in accordance therewith and with the procedures set forth in the applicable rule of the ADR Program. The Notice will also inform the parties of the date of the scheduled preliminary conference.
Counsel and parties in cases so designated shall proceed to mediation as provided in the Order and the ADR Rules and Procedures and shall adhere to those Rules and Procedures in all respects applicable, including the deadlines set out therein.
As an element of this Project, the court has established a centralized Preliminary Conference Part for all cases covered by the Administrative Orders and a single Justice of the court or a staff attorney shall be assigned to that Part. The Part in question is Part PC-CND. The preliminary conference shall be scheduled in that Part for the earliest date available.
In advance of the preliminary conference, counsel shall discuss with one another the possible provision of discovery tailored to the mediation directed by the Administrative Order that will assist in making the mediation as efficient and productive as possible. Such tailored discovery might include a limited exchange of information on a schedule consistent with the mediation process. Counsel shall discuss such discovery at the conference. Any such tailored or limited discovery as may be agreed upon or directed in connection with the mediation would be without prejudice to a full discovery process for purposes of the litigation. Counsel may enter into a stipulation at this conference governing full discovery on the merits. Counsel shall, within four business days after the preliminary conference, consult one another and submit an Initiation Form to the ADR Coordinator as provided in the ADR Rules and Procedures, and shall thereafter proceed to mediation in accordance with those Rules.
All court proceedings in the cases in the Non-Division Pilot Project other than the preliminary conference shall be conducted by the Justice to whom the case was assigned upon the filing of the RJI.
Failure to comply with the Administrative Orders or with the ADR Rules and Procedures in the Non-Division Pilot Project cases may subject the party or counsel in question to sanctions.
Applications to Join Roster
The Program is accepting applications for openings on the Roster. Candidates should submit applications only if they meet the following criteria: ten years experience as a practitioner of commercial law and 40 hours of Part 146 approved mediation training (24 hours in basic mediation training and 16 hours in commercial mediation techniques). Prior experience as a mediator is not required, but is preferred.
The Program will contact only those applicants whose professional background, formal training, and ADR experience meet the current needs of the Roster.
The application form is posted below.
The ADR Office can be contacted at ADR-1JD@nycourts.gov.
ADR Rules and Procedures:Rules and Procedures of the Alternative Dispute Resolution Program (effective May 1, 2017); revised March 8, 2018 [changes to Rules 6, 7, and 15]; revised July 17, 2019 [heading revised to update listing of Justices]
Administrative Orders Regarding Mandatory Mediation of Certain Commercial Cases (Cases Outside Commercial Division)--Pilot Project
Supplemental Order Dated September 27, 2017
Administrative Orders Regarding Mediation of Non-Division Commercial Cases (Referrals by Justices):
Mediator Report Form (9/25/19)
Attorney ADR Certification Form (Commercial Division Rule 10)
Ethical Standards for Mediators
Ethical Standards for Arbitrators & Neutral Evaluators
Roster of Neutrals:
Application to Join the Roster of Neutrals
Re-designation of Commercial Division ADR Roster pursuant to the Rules of the Chief Administrator