On December 5, 2018, New York’s Chief Administrative Judge, Lawrence K. Marks, issued an administrative order amending Commercial Division Rule 3(a), which addresses alternative dispute resolution (“ADR”). This new amendment encourages opposing counsel to work together to select a mediator for commercial cases, including by consulting rosters of neutral mediators provided by Commercial Division courts. Effective January 1, 2019, Rule 3(a) will read (with the new language indicated in bold):
(a) At any stage of the matter, the court may direct or counsel may seek the appointment of an uncompensated mediator for the purpose of mediating a resolution of all or some of the issues presented in the litigation. Counsel are encouraged to work together to select a mediator that is mutually acceptable and may wish to consult any list of approved neutrals in the county where the case is pending. Additionally, counsel for all parties may stipulate to having the case determined by a summary jury trial pursuant to any applicable local rules or, in the absence of a controlling local rule, with permission of the court.
Many Commercial Divisions around the State have posted their rosters of neutral mediators on their websites, including the Eighth Judicial District; Nassau County; New York County; Queens County; Suffolk County; and Westchester County. Other Commercial Divisions, such as Kings County, have rosters of neutral mediators available upon request.
The genesis of this amendment was input from bar associations that mediations tend to succeed when the parties can choose who is best to mediate their dispute. This appears to be what drove the recommendation of the Commercial Division Advisory Council to propose amending Rule 3 in order to promote joint acceptance by the parties of a mediator Prior to the amendment, the language in Rule 3(a) regarding “appointment” of a mediator had apparently led some ADR programs in the Commercial Division to select mediators from their rosters of neutrals without first obtaining input from the parties. This amendment now makes clear that party selection of mediators is not only an available option but is encouraged by the Courts in New York.
The amendment was supported by bodies of both the New York State Bar Association and the New York City Bar Association. Given this support from the organized bar, it will be interesting to follow whether usage of court ADR programs in the Commercial Division will increase in the coming years. Court administrators have tried various pilot and other program to spur increased use of ADR. Nonetheless, many feel that there is further room to benefit from the court ADR programs provided by the Commercial Division.