Preparing Your Client for SDNY Mediation
The growth of the SDNY mediation program increases the likelihood that a matter docketed there will be referred to mediation. There is a wealth of good information on the SDNY’s website that can help practitioners prepare their clients for participating in ADR in the court-annexed voluntary mediation program.
The answer to many questions that a client may have concerning the SDNY mediation “experience” is likely provided on the court’s Mediation/ADR website. Therefore, even if the practitioner has never mediated a case in the court’s mediation program, there is great deal of helpful information on the court’s website that explains what is involved and how the process works. As nearly all SDNY mediators require that the clients attend the mediation (in addition to counsel), it is all the more important to ensure that the client is well prepared.
Steps taken by the SDNY to standardize mediation practice in the court-annexed mediation program are responsible in large part for the program’s enormous success. As a result of a joint pilot project created by the New York City Bar Association and the court mediation program, the SDNY utilizes a performance-based competency assessment of its volunteer mediators, one of the few courts anywhere to do so. For a detailed discussion of the SDNY’s mediation assessment protocol, please see refer to my article “Rebuttal: Establishing Standards and Norms in Mediation” (Law360, August 30, 2016). The theme of that article is that although every mediation (and mediator) is different, the SDNY follows a more or less standardized mediation rubric, which has the benefit of making the process more or less predictable for counsel. Not every mediator is inclined to conduct a joint mediation session with all parties present, although it is a common practice to do so. However, virtually every mediation will probably involve multiple ex parte sessions with the mediator. These private sessions with the mediator may provide counsel an opportunity to present the strengths of the client’s case and to use the mediator as a sounding board in considering various negotiation strategies.
A key source of information concerning court-annexed mediation is the SDNY Mediation Program’s Annual Report. The 2016 Annual Report was released in December 2017 and is posted on the court’s website. A careful reading of the Annual Report provides some extremely useful information. For example, the report distinguishes between those cases that are automatically referred to the mediation program and those cases that are referred by a specific judge using his or her discretion (“Judge Referred”). At the outset, practitioners should know that since 2011, most employment cases and certain Section 1983 civil rights cases against the New York Police Department are, with rare exception, automatically referred to mediation. Thus, practitioners in these areas of law are particularly familiar with the mediation process and the attendant expedited discovery required. More recently Fair Labor Standards Act (FLSA) cases have been increasingly being referred to mediation. Seven SDNY judges have directed that all of their FLSA cases be automatically referred to mediation, although the majority of judges make case-by-case referrals of their FLSA matters.
The number of Judge Referred cases is increasing yearly. In 2016, 340 non-automatic referrals to mediation were made in case types including intellectual property, commercial, personal injury, disability and maritime. There are two factors that may explain this trend. First, in the past, a common concern of judges was that a referral to mediation might unnecessarily delay the case. This concern has been largely addressed by promptly assigning a mediator to the case after referral and decreasing the time between the referral to mediation and conducting the mediation. Increasingly, judges are embedding specific deadlines in the Mediation Referral Order by which the mediation must be conducted. Second, judges now have the capability of requesting that the Mediation Office provide a mediator with specific legal backgrounds. For example, a judge might indicate to the Mediation Office that a mediator with experience in cyber-security would be helpful in a particular commercial case or that a mediator with experience working with diverse family members’ interests would be of use.
The Mediation Office has done a great job in educating SDNY judges concerning the breadth and scope of the expertise of the 315 volunteer mediators on the panel. If a judge knows that the mediator to be assigned to the case is a former General Counsel of a major investment bank, he may be more confident in referring a complex securities case to mediation. Some judges are increasingly likely to discuss mediation with litigants during their initial court conference. Some judges may even take a short break during the conference, with the parties in the courtroom, to call the Mediation Office to arrange for an expedited mediation of a particular matter. In the near future, the Mediation Office is planning to post the bios of the mediators on the panel on the court’s extranet site. Theoretically, this will permit a judge to request that the Mediation Office assign a specific mediator to a particular matter.
Since 2014, the Mediation Office has permitted the mediation to take place in the mediator’s private law office or in the office of one of the litigants. In past years, it was required that the mediation by conducted in the courthouse. This was inconvenient for cases venued in the White Plains courthouse because breakout rooms were often unavailable and it was hard for the parties to caucus privately. Today, mediations can take place anywhere that the parties and the mediator can agree on, although the courthouse is remains the default option.
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