[ADR] Eastern District of New York (updated Jan. 1998)

Eastern District of New York

Updated January 23, 1998, based on new local rules. Portions of this court's information were updated since publication of the manual and differ from the printed version.

IN BRIEF

Process summary

Arbitration. The Eastern District of New York is one of ten districts authorized by 28 U.S.C. зз 651 658 to provide mandatory, nonbinding court-annexed arbitration in cases involving money damages only of $100,000 or less. See below.

Early neutral evaluation (ENE). The court's early neutral evaluation program has been discontinued (see Administrative Order 97-14).

Mediation. With the December 1, 1997 expiration of its CJRA plan, which had authorized a mediation program, the court reauthorized its mediation program through Local Civil Rule 83.11 (see Administrative Order 97-14). See below.

Magistrate judge settlement conferences. Settlement conferences with judges are held in most civil cases. A settlement conference may be initiated at the request of a party, by the assigned judge, or by the magistrate judge to whom the case was referred. A settlement conference may be held at any time during the case. Most settlement conferences are conducted by magistrate judges.

Of note

Obligations of counsel. Counsel are required to read the district's ADR brochure and be prepared to discuss ADR and settlement with the judge at any pretrial conference, including the initial case management conference.

Evaluation. The court's ADR staff monitors the mediation program by asking mediators to complete a questionnaire after every case. The arbitration program in the Eastern District of New York was included in the Federal Judicial Center's study of the mandatory arbitration courts. See Barbara Meierhoefer, Court-Annexed Arbitration in Ten District Courts (Federal Judicial Center 1990). As one of the ten comparison districts under the CJRA, the court is also part of the RAND study of pilot and comparison districts, which was reported to Congress in June 1997.

For more information

Robert C. Heinemann, Clerk of Court, 718-260-2270; Gerald P. Lepp, ADR Administrator, 718-260-2577

IN DEPTH

Arbitration in New York Eastern

Overview

Description and authorization. The Eastern District of New York is one of ten districts authorized by 28 U.S.C. зз 651-658 to provide mandatory, nonbinding court-annexed arbitration in cases involving money damages only of $100,000 or less. Under the program, which was implemented in January 1986, eligible cases are automatically referred to arbitration by the clerk's office after the answer is filed. Cases above the monetary limit may be referred to arbitration with the consent of all parties and approval of the court. In addition, cases not originally designated for mandatory arbitration may be referred later if the assigned judge determines they are eligible.

Most arbitration hearings are held within six months of the filing of the answer. A single arbitrator presides unless a panel of three is requested by the parties. The arbitrator is compensated by the court at court-set rates. In addition to federal statutory authorization the program is authorized by Local Civil Rule 83.10.

Number of cases. During calendar year 1997, 417 cases were referred to arbitration.

Case selection

Eligibility cases. Eligible cases are those seeking money damages only of $100,000 or less, exclusive of interest and costs. All civil cases are presumed by the court to involve money damages under the $100,000 cap unless counsel file a certificate stating otherwise. Civil cases seeking more than $100,000 in money damages may opt into the arbitration program by stipulation of the parties and with court approval. Excluded from arbitration are Social Security cases, tax matters, prisoner civil rights cases, constitutional claims, and claims arising under 28 U.S.C. з 1343.

Referral method. Cases eligible for automatic referral to arbitration are referred after the answer is filed. The arbitration clerk sends a notice of referral to counsel. Cases above the monetary limit may be referred with party consent. Cases not initially designated may be referred later if the assigned judge finds them eligible.

Opt-out or removal. The court may on its own or a party's motion exempt any case from arbitration because it involves novel or complex legal issues, because legal issues predominate, or for other good cause. To remove a case that has been automatically referred to arbitration, counsel must submit a letter, not exceeding three pages, outlining the basis for the request. The letter must be submitted within twenty days after receipt of the referral notice. Within three days of receiving this letter, opposing counsel may submit a responsive letter, not exceeding three pages.

Scheduling

Referral. After an answer is filed in an eligible case, the arbitration clerk issues a notice of referral to counsel.

Discovery and motions. The notice of referral to arbitration advises counsel that they have ninety days to complete discovery unless the assigned district or magistrate judge varies the time by court order. All case activities go forward during the arbitration period and are handled by the assigned district or magistrate judge. If a party has filed a dispositive motion, the referring judge will not sign the order notifying the parties of the arbitrator's name and setting the hearing date (see Selection for case, below) until the motion has been decided. The filing of such a motion on or after the date of the judge's order will not, however, stay the arbitration hearing unless the judge so orders.

Written submissions. Upon entry of the order designating the arbitrator (see Selection for case, below), the arbitration clerk sends the arbitrator a copy of all pleadings and the guidelines for arbitrators. The parties are not required to submit any materials.

Arbitration hearing. The court notifies parties of the date and time of the hearing in the notice of referral to arbitration. The hearing must be scheduled to take place within 120 days of the filing of the answer but must not, unless the parties consent otherwise, be held until thirty days after disposition of dispositive motions or motions to join parties. Parties may agree to an earlier date for the hearing. The arbitrator may change the date of the hearing provided it commences within thirty days of the date set by the court; continuances beyond this must be approved by the court. Most hearings take place within twelve months of the answer.

Arbitration hearings are held at the courthouse before a single arbitrator unless the parties request three. If the amount in controversy is under $5,000, the arbitration must be before a single arbitrator. Logistical arrangements are made by the court staff. Fed. R. Civ. P. 45 applies to subpoenas for attendance of witnesses and production of documentary evidence. Testimony is under oath. The Federal Rules of Evidence are used as guides to the admissibility of evidence. Parties may, at their own expense, record and transcribe the hearing.

Length of hearing. Most arbitration hearings last about four hours.

Program features

Party roles and sanctions. The arbitration hearing may proceed in the absence of any party who fails to appear. If parties who attend do not participate in the arbitration process in a meaningful manner, the court may impose appropriate sanctions, including but not limited to the striking of any demand for a trial de novo filed by that party.

Filing of award. The arbitration award must be filed with the court promptly after the hearing and is entered as the judgment of the court if a request for trial de novo is not filed.

De novo request. A request for trial de novo must be filed in writing and served on all parties within thirty days of the filing of the arbitration award. Withdrawal of the de novo demand does not reinstate the arbitrator's award; the case proceeds as if not arbitrated. The requesting party must deposit with the court the amount of the fees paid to the arbitrator, which is returned if the party receives a more favorable award at trial than was given by the arbitrator.

Confidentiality. The arbitration award may not be disclosed to the trial judge except as necessary for assessing costs or attorneys fees, until the court has entered final judgment or the case has been otherwise terminated, or except for purposes of preparing the report required by з 903(b) of the Judicial Improvements and Access to Justice Act. If there is a trial de novo, the court may not admit evidence that there was an arbitration hearing, the nature of the award, or any other matter concerning the arbitration.

Arbitrators

Qualifications and training. To be listed as an arbitrator, candidates must be attorneys admitted to practice in the Eastern District of New York, must have been a member of the bar of the highest court of a state or the District of Columbia for at least five years, and must be determined competent to serve as an arbitrator by the court. No special training is required. Each individual certified as an arbitrator must take the oath required by 28 U.S.C. з 453.

Selection for case. The clerk's office maintains a list of arbitrators and randomly selects the arbitrator or panel from this list. Parties are notified of the arbitrator(s) selected and the time and date of the hearing by a signed order of the referring judge thirty days before the hearing.

Disqualification. Arbitrators are disqualified for bias or prejudice as provided in 28 U.S.C. з 144 and must disqualify themselves in any action in which they would be required to do so under 28 U.S.C. з 455 if they were a justice, judge, or magistrate judge.

Immunity. This issue is not addressed in the court's rules.

Fees. The court sets and pays the arbitrator fees. A single arbitrator receives $250 per case. If three arbitrators are requested, each arbitrator receives $100 per case. If an arbitration hearing is protracted, the referring judge may entertain a petition for additional compensation.

Program administration

The clerk of court supervises the management of the ADR programs under the direction of the chief judge. The director of courtroom services and two arbitration deputy clerks manage the arbitration program. In addition, a district judge oversees the arbitration program.

Mediation in New York Eastern

Overview

Description and authorization. In addition to its mandatory program for arbitration, the Eastern District of New York has instituted a mediation program, first under its CJRA plan and subsequently by Local Civil Rule 83.11. The program, which was implemented on June 30, 1992, authorizes use of mediation in all civil cases. The purpose of the program is to help parties settle disputes through joint and separate sessions with an attorney neutral. Parties select mediators, who serve pro bono, from the court's roster or from another source.

Number of cases. In calendar year 1997, 147 cases were referred to mediation. (Prior to termination of the ENE program, an additional 27 cases were referred to ENE in calendar 1997.)

Case selection

Eligibility of cases. All civil cases are eligible for the mediation program.

Referral method. Judges and magistrate judges may designate civil cases for inclusion in the mediation program and when doing so must prepare an order to that effect. Alternatively, subject to the availability of qualified mediators, parties may consent to participate in mediation by preparing a stipulation signed by all parties and ordered by the court.

Opt-out or removal. A party may withdraw from the mediation referral or mediation at any time after attending the first mediation session.

Scheduling

Referral. A case may be referred to mediation at any stage in the litigation.

Written submissions. The clerk's office provides counsel with copies of the judges referral order, the clerk's office notice of mediator appointment (if applicable), and a copy of program procedures. No less than seven days before the first mediation session, parties must submit to the mediator a position paper, not exceeding ten pages, outlining the key facts and legal issues in the case, describing the motions filed and their status, and providing any other information that will advance settlement or make mediation more productive. Position papers are not to be filed with the court, nor do district or magistrate judges have access to them.

Mediation session. Any court order designating a case for mediation must contain a mediation deadline not to exceed six months from the date of entry on the docket of that order. The court may extend the deadline upon a motion for good cause. The mediator will contact all attorneys to set the date and place of the first mediation session, which must be held within thirty days of the date the mediator was appointed and may be held at the mediator's office or the court.

Number and length of sessions. The mediator may conduct additional sessions to promote further discussion. More than one mediation session is generally held in each case. Each session lasts about two to three hours. Mediation concludes when the parties reach a mutually acceptable solution, fail to reach an agreement, or reach the deadline set in the referral order. The mediator may not impose a settlement on the parties.

Program features

Discovery and motions. All other case activities, including discovery, motion practice,and trial preparation, go forward during the mediation.

Party roles and sanctions. If a case is designated for mediation, attendance at one session is mandatory; thereafter, attendance is voluntary. The referring judge or mediator may require attendance at the session by the party or a representative with binding authority in the case of a business, governmental entity, or minor. The attorney who has primary responsibility for handling the trial must attend the sessions. The rule does not specify whether or what type of sanctions might be imposed for failure to comply with the attendance and other requirements.

Outcome. If the case settles, in whole or part, the agreement that is binding on all parties must be written and counsel must file a stipulation of dismissal or other appropriate motion. If the case does not settle, the mediator must notify the clerk's office immediately and the case will continue in the litigation process.

Confidentiality. At the start of the initial mediation session, the parties sign a confidentiality agreement to protect all written and oral communications made in connection with or during any mediation session from disclosure or use in any pending or future proceeding or otherwise. The confidentiality agreement also provides that "privileged and confidential status is afforded all communications" of the parties, counsel, and mediator. In addition, mediators must guarantee the confidentiality of all information provided to or discussed with them. Papers generated by the mediation process are not included in court files, and information about what occurs during the mediation sessions may not at any time be made known to the court. However, communications made in connection with the mediation may be disclosed if all parties and the mediator agree.

Mediators

Qualifications and training. To be a member of the court's roster of mediators, candidates must have been a member of a state or the District of Columbia bar for at least five years, must be admitted to practice in the Eastern District of New York, and must have completed at least two days of formal mediation training. Appointment to the roster is for three years, subject to renewal. A member is not expected to serve on more than two cases in a year and is not required to accept each assignment offered, but repeated rejection of assignments will lead to termination from the panel.

Selection for case. Parties have three options for selecting a mediator. They may use a mediator from the court's roster of mediators; they may select a mediator on their own; or they may seek assistance from a reputable neutral ADR organization. When parties choose to use a mediator from the court's roster, the clerk's office appoints a mediator who has expertise in the subject matter of the case.

Disqualification. Each individual appointed as a mediator must take the oath prescribed by 28 U.S.C. з 453. No mediator may serve in violation of 28 U.S.C. з 455. If a mediator is concerned that a circumstance covered by part (a) of that statute might exist, the mediator must promptly notify all counsel in writing. A party who believes the assigned mediator has a conflict of interest may submit a written request for disqualification under 28 U.S.C. з 144. The request must be submitted to the clerk's office within ten days of notification of the mediator or of learning about the potential bias. A denial of the request is subject to review by the assigned judge on motion filed within ten days of the clerk's denial.

Immunity. This issue is not addressed in the court's rules.

Fees. Mediators serve without compensation and receive credit for pro bono service.

Program administration

The clerk of court supervises the management of the ADR programs under the overall direction of the chief judge. The ADR administrator manages the mediation program. In addition, a district judge in each court location serves as liaison judge for mediation.