Looking for a cheaper, faster solution to a civil dispute? Try alternative dispute resolution

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Tully Rinckey PLLC

Albany , NY

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Child Custody, Divorce

Looking for a cheaper, faster solution to a civil dispute? Try alternative dispute resolution

By Eugene Welch, Esq.

Did you know that all federal courts allow—and encourage and some require—alternative dispute resolution (ADR) in civil matters?

The U.S. District Court in the Western District of New York—with courts in Rochester and Buffalo—is no exception. As a federal court mediator in Rochester, I have seen firsthand the benefits that ADR, and mediation specifically, can have on both the courts and individuals dealing with civil matters.

Mediation helps reduce the long backlog of civil cases in federal court by providing a less expensive, quicker resolution. Mediation helps you because you won’t have to wait for motions and trials and appeals.

How it works
In mediation, you have your attorney retain me as a trained “Neutral.” Both sides submit pre-mediation memos setting out their respective positions. I hear you out. You can present your case to me through your attorney or you can speak directly to me, the Neutral, in front of your adversaries so they know early on the strengths of your case. Or, you can speak confidentially to me. I do not report back to the court what was said in mediation except to say the case was settled.

The beauty of this process is that you are in charge. Think of that—you are in charge of how the case is resolved! I hear both sides, talk with both sides about the strengths and weakness of their cases and help lead you to an agreed-upon settlement. It is not a forced judgment by a judge or jury or appeals court. You and your opponent agree to the mediated settlement. If we can’t come to an agreement satisfactory to you, then you don’t agree.

But the odds are that after both sides hear each other out and I give you my neutral evaluation, we will all agree to a settlement of the dispute.

Litigants are increasingly opting for ADR methods to avoid the high cost of going to trial, crowded court calendars and lengthy litigation time. ADR generally consists of two methods—arbitration and mediation. Arbitration involves a neutral party who hears evidence under relaxed rules and decides which party is right and which one is wrong, rendering a final, usually binding, resolution. Mediation is a used to resolve disputes through an impartial person with the goal of helping parties come to a mutual agreement.

Here in Rochester, and also in Buffalo, the intention of ADR is to make available to civil litigants “court-administered ADR interventions and processes designed to provide quicker, less expensive, and potentially more satisfying alternatives to continuing litigation, without impairing the quality of justice or the right to trial,” according to the Western District of New York ADR Plan.

Reducing costs and delays
As federal courts looked to reduce costs and delays in the 1980s and 1990s, the Civil Justice Reform Act of 1990 directed that plans be created to “facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes.”

Included in many of those plans were alternative dispute resolution methods, which were becoming more commonplace as courts worked toward streamlining their judicial processes. The federal Alternative Dispute Resolution Act of 1998 followed, directing U.S. District Courts to utilize ADR in all civil actions, including bankruptcy. It directed federal district courts to “devise and implement” their own alternative dispute resolution programs and “encourage and promote” the use of ADR.

In December 2005, the district judges for the Western District of New York authorized the implementation of a pilot ADR Plan, which went into effect in January, 2006. The pilot program then was extended annually for years 2007, 2008 and 2009, and in 2010, extended indefinitely. The plan was most recently updated in May, 2018 to require that all new civil cases be automatically referred to mediation (unless exempt by the ADR Plan).

High standards
Attorneys representing litigants in ADR processes are held to the same high ethical standards as attorneys who represent clients in non-ADR matters. Additionally, the American Bar Association (ABA) has published Model Standards of Conduct for Mediators, which serve as fundamental ethical guidelines. According to the ABA, the guidelines serve three goals: “to guide the conduct of mediators, to inform the mediating parties, and to promote public confidence in mediation.”

To learn more about ADR, including how arbitration and mediation could benefit your civil legal matter, contact Eugene Welch, Esq., a Partner in Tully Rinckey PLLC’s Rochester office.

A certified Federal Court Mediator, Eugene Welch, Esq. is a Partner in Tully Rinckey PLLC’s Rochester office, where his practice encompasses federal and state litigation and

governmental issues.