Part 160 – New York Presumptive Mediation

{3 minutes to read}  I have previously written about how the COVID-19 pandemic significantly changed the landscape for court-referred mediations in New York State. While there was some support for the courts sending cases to mediation, it was sporadic. Some judges who saw the value of mediation would suggest that parties try mediation. Occasionally, a judge would even order parties to mediation. But that was rare.

In May 2018, I and others put together a full-day CLE program about the underutilization of mediation in New York State. The program bore fruit in June 2019 when Janet DiFiore, the State’s Chief Judge, and Lawrence Marks, the State’s Chief Administrative Judge — who was a panel member at the program — issued a press release stating they intended New York to become a “presumptive mediation” state, meaning, as the name indicates, almost all civil cases would at some point be referred to mediation. 

In the summer of 2019, New York’s 12 judicial districts were tasked with creating local rules for court-annexed mediation programs. The State’s judges and court personnel rolled up their sleeves and by the Fall of 2019, the local rules began to take shape. Court mediation programs did not then immediately roll out, and in retrospect one cannot know how quickly that would have happened absent the pandemic. But COVID made the precise timing of program implementation moot. The pandemic made the decision for everyone since In March 2020, courts throughout the country shut down. The most immediate concern was how criminal cases could move forward. Civil cases were temporarily put on the back burner. But then, like the Big Bang, the Zoomiverse suddenly sprang to life.

Until March 2020, mediations were generally conducted in person. Mediation training sessions included discussions on where to best seat everyone. Should the parties or the lawyers be closer to the mediator? Should the mediator be the closest person to the door? And was that seating arrangement to prevent people from leaving, or so the mediator could be the first to flee to safety if need be? By April 2020, it no longer mattered because the seating arrangement discussions morphed into “How to set up a breakout room.”

In 2021-2022 discussions morphed further into “Are mediations better in person or by Zoom?” By 2023 that discussion too became moot, because parties and their lawyers, when asked if they preferred to travel to X place (by car, train, plane) or conduct the mediation in the comfort of their office (often by that point a home office), or den, or living room, decided almost en masse, that they’d take the office/den/living room option. As an example of how things changed, in two divorce mediations I did, spouses were alternatively in their car, outside in a park, or, in one instance, outside in the Rockaways, where the conversation had to be halted occasionally to accommodate the noise from planes taking off from JFK. Both cases were settled.

Court-ordered mediations are now commonplace at least in the New York City area. Current data is limited so it is unclear how many cases are actually sent to mediation by the courts or what the effectiveness is. Most court-ordered mediations I handle settle. They settle mainly because that’s what happens in most cases. They settle. So, what are the current issues relating to court-ordered mediation? Next time.

Gary Shaffer Shaffer Mediation Gary@ShafferMediation.com