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November 12, 2019

NYS Courts to Implement Early Mandatory Mediation

The new presumptive ADR initiative in NYS courts will soon require parties in civil matters to participate in mediation or another form of alternative dispute resolution (ADR) much earlier in the litigation process.

First announced by Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks in May 2019, the initiative seeks to decrease costs incurred by parties, reduce case delays caused by backlogs in the courts, and improve case outcomes. The announcement of this initiative follows the February 2019 interim report and recommendations outlined by the state Advisory Committee on ADR. The committee found that current court-sponsored mediation programs, often free of charge or offered for a reduced fee, are underutilized, despite benefitting thousands of New Yorkers on an annual basis. Presently, court-sponsored mediation is on an “opt-in” basis or occurs by virtue of a specific direction by individual judges on a case-by-case basis.

The new program will impact a broad array of civil matters, including personal injury matters, matrimonial cases, estate matters, and commercial disputes. Parties involved in these matters will be referred for participation in ADR at the outset, similar to ADR programs in certain federal courts. The timeline for the implementation of presumptive ADR will be determined at a local level, allowing each jurisdiction to expand on the number and scope of court-sponsored ADR programs already operating in their respective areas. Though the program will operate locally, there will be statewide oversight by a taskforce comprised of the deputy chief administrative judges, their staff, the state ADR coordinator, administrative and trial court judges, and local bar associations that will facilitate the implementation of these programs. The Office of Court Administration will promulgate uniform rules and guidelines, which will include a process for opting out of presumptive ADR.

The presumptive ADR program is expected to take advantage of volunteer mediators, court-employed neutrals, judges, non-judicial staff, judicial hearing officers, and community dispute resolution centers in order to meet the growing need for ADR personnel and forums. Notably, the program will be monitored and adjusted as needed over time; as the program is rolled out, data will be collected as a means of evaluating the effectiveness of presumptive ADR on local and state levels.

This is a positive development for litigants in New York State. Requiring a good faith attempt at an early resolution before significant fees are incurred could benefit all interested parties. Once the presumptive ADR program is up and running, attorneys and their clients should discuss case resolution strategy at the outset of the litigation instead of taking a potentially costly “wait and see” approach.

If you have any questions regarding the content of this alert, please contact Paul Sanders, partner, at or another member of the firm’s Torts & Products Liability Defense Practice Area.


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