By: Donald L Swanson
As necessity is the mother of invention, so mandatory mediation programs are the progeny of overburdened courts and backlogged dockets.
That’s what happened, a couple years ago, in a New York appellate court:
- this overburdened court, with seriously-backlogged dockets, instituted mandatory mediation as one of a series of steps to remedy the problem.
Here’s what happened.
Mandatory Mediation Program
In 2018, the Supreme Court of New York, Appellate Division, Second Department, recognized that it had a seriously-backlogged docket problem and committed itself to resolving that problem.
To do so, the Court took a number of practical steps, including creation of a mandatory mediation program.
Here’s how the situation and steps are explained [Fn. 1]:
- The Problem. The Court “has a significant backlog of perfected civil appeals awaiting calendaring . . . it can take as long as 18 months for a civil appeal to obtain a place on the court’s day calendar and then more time for a decision to be rendered.”
- An Obligation. “We have an obligation to meet this problem head on” but must do so without compromising quality of justice.
- The Question. “So we reach the question: what are we, in the Second Department, going to do about our backlog?”
- Some Answers:
- More Work. In 2017, “the Court decided 3,815″ appeals but is expanding its 2018 calendar to hear more cases each week, which should (i) reduce the backlog, but (ii) also increase “the already daunting workloads” of the Justices and staff;
- Special Benches. With the assistance of volunteer Justices, special benches are being created to hear the most-delayed cases; and
- Mandatory Mediation. Special settlement masters (i.e., mediators) will handle assigned cases and devote 90 pro bono minutes to each mediation—if the parties wish to continue beyond those pro bono minutes, they may engage the special master to do so.
Mediation Rules—Including Sanctions
The mediation rules, enacted in response, are 22 NYCRR 670.3 The mandatory provisions, including sanctions, are in 670.3(d)(2), which reads in part:
- (i) The clerk of the court shall cause civil appeals . . . to be designated for mandatory mediation; and
- (v) Mediation sessions shall be deemed appearances before this court. Failure of the parties . . . or their counsel . . . to appear or to appear on time may result in the imposition of sanctions.
Remedy: Order to Show Cause
When a party and attorney fail to appear, a next step toward sanctions is for the Court to issue a “show cause” order. Here are two examples:
- Lajara v. Macura, 2020 NY Slip Op 64447(U), Supreme Court of New York, Appellate Division, Second Department, decided March 10, 2020.
On February 26, 2020, a Special Master conducts a mediation session, but no one appears for Appellants.
Appellants’ trial counsel, when reached by telephone, says she is unprepared to discuss settlement and that Respondents took a “no pay” position on settlement.
The Court, on its own motion, orders all parties and their counsel to show cause why sanctions should not be imposed under 22 NYCRR 670.3(d)(2)(v) upon all parties and their respective attorneys.
- Margaret Campbell v. Bradco Supply Co., 2020 NY Slip Op 64369, Supreme Court of New York, Appellate Division, Second Department, decided March 9, 2020.
On February 28, 2020, a Special Master conducts a mediation session, but the parties are “unable to engage in meaningful settlement discussions” because respondents’ representative has no settlement authority and cannot “reach anyone with settlement authority by telephone.”
The Court, on its own motion, orders the parties to show why respondents and their attorneys should or should not be sanctioned under 22 NYCRR 670.3(d)(2)(v).
Remedy: Motion for Sanctions
Another way to pursue sanctions is a direct motion by an opposing party.
The case is In the Matter of Schwartz, 2019 Slip Op 08565, Decided November 27, 2019, by Supreme Court of New York, Appellate Division, Second Department.
Appellee moves the Court to sanction Appellant and Appellant’s lawyers under 22 NYCRR 670.3(d)(2)(v) for failure to appear at a mandatory mediation session.
The Court grants the motion and sanctions Appellant’s lawyers $750, payable to the Lawyers’ Fund for Client Protection of the State of New York.
Here’s what happened:
- The case had been referred to mandatory mediation;
- Appellant’s attorneys fail, without good cause, to insure that Appellant appears for the mediation session;
- The attorney who appears for Appellant has no authority to settle;
- The lead attorney for Appellant seeks, and is granted, an adjournment of the mediation session so he can personally attend—but “inexplicably” sends a different attorney in his stead on the adjourned date;
The Court reasons, further, that:
- Although parties are not compelled to resolve their appeals by settlement, parties and their counsel are required to attend mediation sessions; and
- Parties “may not arrogate unto themselves the authority to dispense with a mediation session or to render such sessions nugatory by refusing to appear and participate.”
This mandatory mediation process in New York provides an interesting look into a recently-enacted process of mandatory mediation.
It will be interesting to see what future studies of and reports on this process will conclude.
Footnote 1. This information and quotes are from Tackling the Backlog: New Initiatives in the Second Department, by Alan D. Scheinkman.
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