Southern District of New York
IN BRIEF
Process summary
Mediation.
With the adoption of its CJRA plan on December 12, 1991, the Southern District of New York established in its Manhattan Division a mandatory mediation program for civil cases involving only money damages. Lawyer-neutrals trained and assigned by the court serve as mediators without pay. Between January and September 1994, 582 cases were found eligible for mediation. See following description.
Judicial settlement conferences.
A judge-hosted settlement conference is usually held in every civil case.
Of note
Obligations of counsel.
Counsel must discuss ADR with their clients and be prepared to discuss ADR and settlement with the court.
Information from court.
A guide to the court's mediation program and other aspects of the district's CJRA plan is available from the clerk's office.
Evaluation.
The court's CJRA advisory group conducted an evaluation of the mediation program. In addition, as one of ten pilot courts under the CJRA, the Southern District of New York is part of the RAND study of the pilot and comparison districts, which will be reported to Congress by the Judicial Conference in 1996.
For more information
George O'Malley, CJRA Staff Counsel, 212-637-0136, ext. 5407
IN DEPTH
Mediation in New York Southern
Overview
Description and authorization.
Under its CJRA plan, adopted December 12, 1991, the Southern District of New York established in its Manhattan Division a mandatory mediation program for civil cases that involve money damages only. Social Security, prisoner, tax, and pro se cases are excluded. Under the system, eligible cases are reviewed by the CJRA staff attorney and the assigned judge for suitability for mediation. Lawyer-neutrals trained and assigned by the court serve as mediators without pay.
Number of cases.
From January through September 1994, 582 cases were found eligible for mediation. During this time period, two new cases were scheduled for mediation each business day.
Case selection
Eligibility of cases.
All cases seeking only money damages are eligible for mandatory referral to mediation except cases seeking relief other than money damages and Social Security, tax, prisoner civil rights, and pro se cases. The parties in any ineligible case may ask the court by written stipulation to refer the case or any part of it to mediation.
Referral method.
All cases are reviewed by the CJRA staff attorney and the assigned judge for eligibility for mediation. At the initial case management conference, the judge discusses mediation with the parties, and the judge and parties decide whether the entire case or parts of it should be referred. A general time frame for the mediation is set and the judge then prepares an order referring the case.
Opt-out or removal.
Parties may ask the court to remove a case from the mediation process.
Scheduling
Referral.
Referral to mediation occurs at the initial case management conference or at any other appropriate time.
Written submissions.
At least seven days before the mediation conference, the parties give the mediator copies of their pleadings and a memorandum of ten pages or less stating their positions regarding liability and damages. If the parties agree, copies of the memorandum are exchanged with opposing parties.
Mediation session.
The mediation session should occur within 150 days of the last responsive pleading. The court's CJRA staff counsel schedules the sessions, which are held at the courthouse.
Number and length of sessions.
The mediation session continues as long as the mediator and the parties make progress toward resolution. Mediation sessions last about three to four hours, and generally three or four sessions are required to resolve a case.
Program features
Discovery and motions.
Other case activities, such as discovery, go forward as scheduled during the mediation process.
Party roles and sanctions.
In addition to the attorney primarily responsible for the case, the mediator may require a party representative with settlement authority to attend the mediation sessions. Refusal of a party to attend is reported to the assigned judge and may result in sanctions. In addition, the court will take whatever action is appropriate when noncompliance with any other aspect of the court's referral order is reported.
Outcome.
If settlement is reached, a written agreement is prepared, along with a stipulation of discontinuance. The stipulation is presented to the assigned judge for approval, and the action is dismissed with prejudice. If settlement is not reached, the mediator files a statement with the CJRA staff counsel stating that no settlement was reached. Thereafter, the case is treated as if the mediation process had not occurred.
Confidentiality.
Nothing said at the mediation conference may be reported, recorded, or made known to the assigned judge or construed as an admission. No party is bound by anything said or done at a mediation conference unless settlement is reached.
Neutrals
Qualifications and training.
To become a member of the court's roster of mediators, a candidate must have been a member of any state's bar for five years, be admitted to practice in the district, have completed the court's two-day mediation training, and be certified by the chief judge as competent to perform the duties of mediator.
Selection for case.
Within ten days of the mediation referral order, the CJRA staff attorney assigns a mediator from the court's panel of mediators and notifies the parties of the appointment.
Disqualification.
A mediator is required to disqualify himself or herself in any action in which he or she would be required to do so under 28 U.S.C. § 455 as a justice, judge, or magistrate judge. Any party may submit a written request to the CJRA staff counsel within ten days of the notice of mediator appointment to seek disqualification of the mediator for bias or prejudice under 28 U.S.C. § 144. Denial of the disqualification request is reviewable by the assigned judge.
Immunity.
The court's advisory group takes the position that "a person serving as a volunteer mediator and acting under an order of a Judge of this Court would be entitled to absolute quasi-judicial immunity as are other governmental officials who play an integral part in the implementation of the judicial function." Memorandum from Robert W. Sweet to Volunteer Court Mediators (July 17, 1992).
Fees.
Mediators are not compensated for their services. They are eligible, however, to receive credit for pro bono service.
Program administration
The mediation program is administered by the CJRA staff counsel. Changes to the basic structure of the program are reviewed by the court's CJRA advisory group and must be approved by the board of judges.
Excerpted from
ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996,
a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution