In a recent Notice to the Bar, the United States District Court for the Southern District of New York announced that all employment discrimination cases (other than cases filed under the Fair Labor Standards Act) are now automatically referred for mediation under the court’s alternative dispute resolution (“ADR”) program. Chief Judge Loretta J. Preska explained that the court believed that early, mandatory mediation would be more effective and efficient in resolving these disputes.
Mediation under the ADR program is conducted in accordance with the court’s Local Civil Rule 83.12. Participation is mandatory unless the presiding magistrate judge exempts the case from automatic referral. Pursuant to the rule, the first mediation session should occur within thirty days after the mediator is assigned, and parties are required to provide to the mediator not less than seven days prior to the mediation a confidential memorandum describing the issues in dispute, identifying the identities of the individuals who will attend the mediation “with full authority to resolve the matter,” and provide “the parties’ reasonable settlement range.”
The mediation process does not interfere with or affect the normal progress of the case. Thus, parties must satisfy all other obligations relating to conferences, initial disclosures, discovery, etc. while simultaneously pursuing the mediation process.
This new program will force all parties to assess promptly after the filing of an action the prospects for an early settlement. Of course, one impediment to resolution at that stage is the fact that the parties may not have had the opportunity to undertake an adequate investigation, let alone discovery, regarding the allegations in the complaint. Nonetheless, given that the downside — principally upfront time and legal expenses to participate in the mediation process — is limited, the mediation program may well help facilitate early resolution of disputes that might otherwise be settled only after greater expenditure of time and resources.