New York County Lawyers Association Committee on Arbitration and ADR Comments on Success of ADR Program in United States District Court for the Eastern District of New York Offer Encouragement to Users of ADR and Suggest Action by Corporate Counsel

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, and expenses, and waste of time. As peacemaker the lawyer has a superior opportunity of being a good man. There will be business enough.” 1

These contemporary sounding words by Abraham Lincoln were recently borne out by the New York County Lawyers Association Committee on Arbitration and ADR (the “NYCLA ADR Committee”), which recently had good news to report on the success of the alternative dispute resolution (“ADR”) program that has been implemented for the last five years in the United States District Court for the Eastern District of New York (the “EDNY”). The NYCLA ADR Committee’s statement was issued to the Committee on Civil Litigation of the EDNY, in response to its July 21, 1997 request for public comment on the Court’s implementation of its Civil Justice Expense and Delay Reduction Plan, which was adopted on December 7, 1991. 2

The ADR Committee found that the EDNY ADR programs, with a greater than 50% settlement rate, necessarily reduced the time and cost involved in those cases and were received by parties to those cases with greater satisfaction than were cases outside the ADR program. The ADR Committee observed that parties and their counsel not only found the ADR processes and the neutral to be fair and appropriate for their case but also were happy in general with ADR and recommended that the program be continued.

In preparing its evaluation of the EDNY program, NYCLA’s ADR Committee reviewed results of studies by RAND Institute for Justice 3, the Federal Judicial Center4, and by the EDNY Advisory Group5. In addition, the Committee drew on the experience of its members — many of whom serve as neutrals on court-annexed panels of the EDNY and the United States District Court for the Southern District of New York (“SDNY”) –, interviews with the ADR Administrator, and other anecdotal sources.

In commenting on the EDNY program in particular, the ADR Committee highlighted RAND’s finding that, of the six pilot districts with ADR programs studied by RAND, the EDNY program had by far the lowest commitment of full time equivalent (“FTE”) personnel annual cost6 and lowest total annual cost7 of all six pilot districts, but had the second highest settlement rate — second only to the settlement rate in the SDNY. The EDNY’s high settlement rate might be attributable, in part, to the initial resources it committed to provide training for neutrals on its panel. By contrast, the programs with the highest FTE personnel annual cost8 and highest total annual cost9 — the SDNY and Southern District of California (“SDCA”) — had a lower per case cost than the EDNY. RAND observes that this is likely due to the high volume of cases in the SDNY and SDCA, as compared with the relatively low volume of cases that has been sent into the EDNY program. All of this indicates that the EDNY ADR program has great potential, but is being under-utilized and could benefit from greater commitment not only of cases but also of resources in order to achieve maximum efficiency and provide the greatest service to cases pending in the EDNY. Accordingly, the NYCLA ADR Committee recommended an increased commitment of resources and cases to the ADR program in the EDNY.

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