Columbian Lawyers get a crash course in new presumptive mediation program
The New York State court system recently began presumptive mediation for its civil cases. It’s a big change that naturally has many lawyers and judges skeptical. However, Justice George Silver has been travelling around the city with a message to skeptics — presumptive mediation works.
“Don’t be afraid of presumptive mediation,” said Justice Silver, deputy chief administrative judge for the NYC courts. “Don’t be afraid of it, embrace it. We’re not going to force you to settle cases. What we’re really doing, and it’s to the benefit of everyone, is we’re looking at cases earlier than later.
“Certainly we know that there are cases that will never settle and will have to go to trial, but there certainly are that we can identify, and if we can settle 15 to 20 percent of cases, that leaves room for judges and everyone to work on more difficult cases.”
Presumptive mediation began on all civil cases on Tuesday, Sept. 3 in Brooklyn. Each case gets one free hour of a mediator’s services in an attempt to settle a case. After that initial conference, the parties can decide to continue with a mediator or to move towards a trial.
On Wednesday, the Columbian Lawyers Association of Brooklyn hosted Justice Silver as the guest speaker during its monthly continuing legal education meeting so that he could explain the most important aspect of the changes in a speech titled, “NYS’s Presumptive Alternative Dispute Resolution Initiative.”
More than 160 lawyers and judges were in attendance for the Columbian Lawyers meeting at Gargiulo’s in Coney Island that Wednesday, a clear sign of interest in the topic.
“We are so fortunate to be hearing from Hon. George Silver give a presentation on this topic,” said Susanne Gennusa, president of the Columbian Lawyers. “It was especially good because of the timing of it, we were able to have it on the heels of the newly minted mediation plan that was implemented this week.”
Justice Silver explained that he has been pushing for alternative dispute resolution for years and detested the fact that it’s referred to as “alternative.” He began the undertaking in 2017 when he would host blockbuster events in Brooklyn with Justice Kenneth Sherman, and they invited insurance companies to help settle cases quickly.
The most important thing, Justice Silver explained, is changing the culture in which people expect that they can’t consider settling cases early on, and to get insurance companies and hospitals to buy in.
“People say you can’t settle in the medical malpractice arena because you can’t settle cases until it’s prime,” Justice Silver said. “Well, we have commitments from New York Presbyterian Hospital to come in and to look at cases earlier.”
Justice Silver explained that there are different types of alternative dispute resolution, such as mediation, arbitration, early neutral evaluation, judicial settlement conferences and summary jury trials. He added that the court system has tried to identify types of cases that work best with the different solutions. The court also took advice from each administrative judge in the state so it could tailor solutions toward specific areas.
To train mediators, the court is offering specific continuing legal education seminars and has been busy at work training court staff. Judges have also been trained with “settlement skills”; and court staff, judges and judicial hearing officers are becoming certified mediators. Volunteer attorneys are also being trained as neutral evaluators and mediators through local bar associations.
The judge admitted that the system is still not perfect and even outlined some areas of concern that court officials have. He explained that they would like input from local bar associations to ensure diversity of mediators, avoid power imbalances in mediation, and determine when opt-out provisions are necessary. He added that discussions are ongoing about compensation rates for mediators after a certain amount of volunteer hours.
“We started in Brooklyn with Judge Sherman and the help of Maria Aragona, and we had settlement rates of 83 percent,” Silver said. “It was great to see because when people brought their clients there, which was the key, and people started opening up a dialogue.
“It wasn’t a one-time thing. Our rates have been unbelievable. You see the relationships start blooming as a result of this because when you see the success on one case, people start noticing and bringing other cases.”