Thirdly, counsel should keep ADR in mind as an option even when a court- annexed program is not available. While some disputes reportedly need “ripening” in the sun of litigation before the pummeled parties see the benefits of settlement, some studies, and anecdotal evidence of mediators, indicate that the earlier a dispute goes to mediation, the better — in part because there are fewer “sunk costs” discouraging parties from settling for less. Private providers of mediation services have long been available in California, Texas, Florida and other states, and they are on the rise here in the New York City area. Not only does mediation offer to save time and reduce cost, but it can protect sensitive relationships, spread an umbrella of confidentiality over potentially embarrassing disputes, result in greater party satisfaction, and, with a consensual settlement, increase chances of collection or adherence to the terms upon which the dispute was resolved.
Finally, counsel might consider learning more about ADR through the NYCLA ADR Committee. The NYCLA ADR Committee holds monthly luncheon forums, held at the alternating venues of NYCLA and the American Arbitration Association, with guest speakers on topics relating to all forms of ADR — including arbitration, mediation and neutral evaluation — as applied across the gamut of legal fields, such as employment, securities, intellectual property, construction, real estate, commercial disputes and other areas. The Committee independently, and in conjunction with Courts and other bar associations, also presents evening forums and other programs, such as advocacy skills in mediation, arbitration and mediation training, and selection of the appropriate ADR mechanism for the resolution of one’s dispute. The Committee lends support to the local Courts in connection with their ADR programs and also reports on legislation and prepares public responses on issues of significance to ADR. Counsel with further interest in NYCLA’s ADR committee or upcoming events should contact Harriet Astor at NYCLA (212) 267-6646, ext. 212.
1 The Library of America, Lincoln: Speeches and Writings 1832 – 1858, “Notes on the Practice of Law” (1850).
2 The Civil Justice Expense and Delay Reduction Plan was implemented pursuant to the direction of the Civil Justice Reform Act of 1990 (the “CJRA”). Title 28 U.S.C. Section 471 et seq. Under the CJRA, courts were directed and encouraged to develop case management programs and procedures, including differential case management “to facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes.” Id. In connection with the CJRA, 10 pilot districts, including the EDNY, and 10 comparison districts were established. These districts were required to implement case management programs, one component of which was the use of ADR.
3 At the request of the Judicial Conference, pursuant to the Civil Justice Reform Act of 1990 (the “CJRA”), 28 U.S.C. Sections 471-482, RAND Institute for Public Justice engaged in a study of implementation of the CJRA, producing four separate reports, including one on ADR in the EDNY and five other pilot districts entitled “An Evaluation of Mediation and Early Neutral Evaluation Under the Civil Justice Reform Act.” RAND concluded that it could not find a strong statistical evidence on issues relating to time and cost savings in ADR, apparently, in large part due to a small rate of returns of litigant survey responses, the fact that the case sample studied was drawn from the early months of the ADR programs, that many of the questions concerning time and cost called for explanations that related generally to case management rather than specifically to ADR processes, and similar factors. RAND recognized that study of these issues is in its preliminary stages and would require further refinement not only in the studies but also in the implementation of the ADR programs.