Alternative Dispute Resolution

(OR HOW TO HOPEFULLY STAY OUT OF COURT)

by Margaret C. Tabak

Guilderland, NY - The use of non-litigation dispute resolution has been in use in other States and down State and is now making its way up the Hudson to Albany and beyond.

Chief Judge Janet DiFiore is promoting a program where parties in civil cases will be referred to mediation or some other form of alternative dispute resolution (ADR) as the first step in a case that is proceeding in court (presumptive ADR). 1

This process will refer cases routinely to mediation and other forms of ADR. This will apply to a broad range of civil cases, including divorce cases. The focus will be on mediation.

The philosophy is that transitioning to an early and presumptive ADR model and expanding the scope of ADR to include the broadest possible range of civil case types will play a significant role in decreasing costs to the parties and the judiciary and improving case outcomes as well as reducing case delays. The plans will take the fullest advantage of a wide range of existing resources, including volunteer mediators and neutrals on court rosters, judges, nonjudicial staff, judicial hearing officers and community dispute resolution centers. These options will include (1) a wide variety of court conferencing processes led by judges or court personnel; (2) referrals of disputes to dedicated court staff neutrals; (3) organization of “settlement days” in which courts try to resolve large numbers of disputes involving the same defendant in a focused negotiation effort; (4) mediations; (5) arbitrations; (6) neutral evaluations; (7) summary mini-trials; and (8) accelerated fast-track litigations. 2

The mediators for court-sponsored mediation programs can be (1) specially trained court personnel, (2) private mediators approved by the court for membership in a panel, or (3) professional mediators who are affiliated with court-approved dispute resolution organizations. In addition, parties will always be free to choose private mediators not members of a courtapproved panel.

As someone who is trained in mediation, and has worked with many clients and mediators, there are some great benefits to this program. Mediation can generally be less expensive and faster than traditional litigation. It also allows you to “chart your own course.”

Not every family will be a good fit for mediation, although some of the other ADR alternatives may be an option. Mediation should not be used in cases of domestic violence, or where there is a power differential between the parties. It should not be used if one (or both) people are looking for a “win.”

My other concern will be who the Court uses for mediators. The program only requires a 40-hour training model. 3 How many of us are proficient in our jobs after the first week of work? While many mediators are also attorneys 4 , that is not a requirement. Therefore, it will be important to work with a mediator who is knowledgeable, and well trained.

As I frequently write about, have a lawyer read anything before you sign it!

1 22 NYCRR 16 2 See www.nycourts.gov/press 5/14/19 3 146.6(b) 4 146.4(a)(1)

from Tabak Law Office

100 Great Oaks Boulevard, Suite 122, Albany • (518) 464-4095 www.tabakLo.com

Margaret C. Tabak has been an attorney since 1988, starting her career in Schenectady and moving her practice to Guilderland in 1995. The law firm is located in Great Oaks Office Park (near Crossgates Mall). Margaret counsels clients in all matters related to matrimonial and family law. A resident of Guilderland for more than 25 years, Margaret received her undergraduate degree from SUNY Albany and her law degree from Albany Law School. If you have questions about a matrimonial or family law issue, contact Margaret for a consultation.