The ADR Challenge: Its Growth in New York State

Deborah Masucci

Are we optimally using mediation and arbitration in New York state? In April 2018, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks thought not. That is when they established an Advisory Task Force to provide recommendations on how to increase the use of alternative dispute resolution (ADR) in the courts with the goal of reducing case delays and enhancing access to justice.

The ADR boom seen in the late 20th Century never sparked in New York state despite its many champions in New York City, the home of the American Arbitration Association (AAA), the International Institute for Conflict Prevention and Resolution (CPR) and the Financial Industry Regulatory Authority’s (FINRA) ADR Department. During that time JAMS—the biggest mediation advocate in California, established a New York presence waiting for the wave to come. New York state law school’s established ADR clinics to offer students hands on experience using the processes that would become part of their case management toolkit as they developed their legal career. Through all of these development, the NYSBA Dispute Resolution Section supports the members of the Bar in their efforts to be skilled ADR practitioners by offering many opportunities to be part of the ADR evolution.

In 2018, the NYSBA’s Dispute Resolution Section celebrated its 10th anniversary. Its members are focused on three pillars: a forum for improving ADR processes, enhance the proficiency of practitioners and neutrals through education, and increasing knowledge and availability of party selected solutions. These pillars were evidenced throughout 2018 and will continue to strengthen as the Section’s members continue to advocate for high professional standards for delivering these processes.

Collaboration is central to all the activities that the Section undertakes. In 2018, major programs were offered in collaboration with other NYSBA Sections including the: Commercial and Federal Litigation, Corporate Counsel, Elder Law and Special Needs, International, and Young Lawyers and Law Students Sections. The ADR Section also partnered with the New York International Arbitration Center, the Chartered Institute of Arbitrators and even the United Nations, providing opportunities for members to expand their skills into cross-border arbitration and mediation.

How were the pillars and collaborative efforts demonstrated in 2018? How will the Section carry these initiatives forward in 2019? First, as a forum for improving ADR processes, the Section delivered a program titled “The Litigative DNA: The Underutilization of Mediation in NY.” That program examined the reasons ADR has stalled in New York and received commentary by court programs in states where mediation in particular is part of the fabric of their dispute management and resolution processes. Further, ADR in the Courts and Mediation Committees have been working closely with court ADR administrators and judges to improve the quality and performance of court ADR programs. These Committees and additional programming will play an important role in 2019 by providing recommendations to the Advisory Task Force, an integral part of improving ADR processes in expanding the diversity of the rosters of mediators and arbitrators and, more importantly, ensuring that diverse neutrals are selected to cases. The Section offers a mentorship program that includes scholarships for women and minorities to attend Section programs during the year. In 2019, the Section plans to publish a practice development guide for new neutrals and will issue a report on efforts to diversify the field.

Second, the Section is committed to educating lawyers advocating in an ADR setting and neutrals. Each year, the Section delivers mediation and arbitration training. These sessions are focused on service as a neutral. However, in 2018, the Section added Mediation Advocacy skills training and offered an ADR clinic. The clinic prepares new lawyers to offer their ADR advocacy services to unrepresented parties building experience that can be used to showcase their skills to possible employers. New York state law schools have three opportunities to compete and boast about their skills training classes. For the third year, the Section sponsored its Arbitration Competition and in 2019 the Section will offer a Mediation clinic testing competitors’ skills as a mediator and mediation advocate. Finally, the NYSBA/American College of Civil Trial Mediators sponsor an annual writing competition recognizing scholarship in the ADR field. Two prizes are awarded—one solely for New York state students.

Third, the world of ADR and the processes used to resolve disputes continues to evolve. Our world is shrinking and everyone is involved in some form of international trade. In 2018, the Section celebrated the 60th anniversary of the New York Convention and the adoption of the Singapore Convention developed to enforce cross-border mediation settlements. Both instruments support ADR internationally. It is important for New York lawyers to be aware of these important tools supporting arbitration and mediation because New York state is an international center for trade. The Section continues to support ADR in a myriad of fields with its programming and committees. In 2019, the Legislative Committee will work with members of the New York legislature on possible changes to New York’s CPLR.

As the Section celebrates its 10th anniversary, we look back at what has been accomplished in the field and what needs to be done in the future. Section members will be a powerful force in the evolution of the ADR field. The Section offers lawyers a unique opportunity to be part of the evolution by taking advantage of the programs offered and by actively working on initiatives to expand the field. Take the step and join us.

Deborah Masucci is an arbitrator, mediator and consultant of Masucci Dispute Management and Resolution Services.