Attorney for the Child: When the AFC believes the child lacks capacity, or that the child’s wishes are likely to result in harm?

In my last post, I began writing about the role of an Attorney for the child (AFC), focusing on the following questions:

  1. What does an AFC do, generally speaking?; and,
  2. What if the AFC believes that what the child wants is not in the child’s ‘best interests’?

Question #2 assumes that, though the AFC disagrees with the child (client) on some matter, the child is capable” of making decisions

Here, I continue with a different question:

What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?

According to the Code,

When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position.[i]

A child may be deemed to lack the capacity not only due to age, but also due to mental illness.[ii]

Note that the AFC would be justified in advocating a position contrary to the child’s wishes if the AFC is convinced that,

following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, . . .[iii] (emphasis added).

While an AFC may act in opposition to the child’s/client’s wishes under certain circumstances, the AFC’s ability to do so is limited.

The standard leaves room for doubt – for instance,

What exactly does “serious harm” mean?

What does “imminent” mean?

Though these questions are debatable, perhaps even amongst judges, an AFC does have to meet a certain standard.  An argument by an AFC that something bad might happen years in the future as a result of following the child’s wishes, would be unlikely to meet the standard’s criteria of “likely to result” and “imminent” harm.

Note further that the AFC,

must inform the court of the child’s articulated wishes if the child wants the attorney to do so, . . . (emphasis added).

Speaking for myself, I like the idea that the court will be informed when the AFC and child disagree.  (The “must” part of this text).

But this requirement to inform the court is conditional; the AFC must inform the court if the child wants the AFC to do so.  This qualification concerns me.  You don’t need to be a mediator to know that many adults have difficulty expressing their needs and handling conflict well.  Can we expect children – who are probably under great stress due to the parental conflict, and very possibly caught between their parents – to express their disagreements with a lawyer, and be strong enough to say, “I want you to tell the judge my wishes on this matter, even though you don’t agree with me”?

It seems a lot to ask.

Whatever the answer, be aware that an AFC may be part of your case.

[i] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

[ii] For that matter, adults may also lack the ‘capacity’ to make decisions due to mental illness.

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

 

 

Attorney for the Child: What is it? What does one do?

If you’re a parent in family or supreme court for a case relating to a child custody issue, you may have a lawyer representing you.  Of course, the other parent may also be represented by a lawyer.  But did you know that your child/ren may also have an attorney?[i]

For some parents, it is a strange idea; but if you are in court and are not able to settle the legal issues with the other parent, a lawyer may be appointed to represent your child.

What does an attorney for the child do?

An attorney for the child (AFC) ““must zealously advocate the child’s position.”[ii] (emphasis added).  That is to say that, just as each parent has ‘a position,’ a child may have one of his/her own as well.

An example:  you and your spouse or partner are separating.

You want your child to live with you.

The other parent wants the child to live with her/him.

But what does your child want?  An AFC is concerned with this question – and will represent a child much as your attorney (if you have one) might represent you.  Just as a lawyer for an adult will consult with and advise the client,

“. . . , the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances.” [iii]

Implicit in the role of an AFC is an acknowledgement that children have their own views, wants, and needs – and that they may be in opposition to those of one or both of the parents.

What if the AFC believes that what the child wants is not in the child’s ‘best interests[iv]?  

If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.[v]

It is not the role of an AFC to substitute his or her judgment and impose it on the child/client.  If the child is “capable” of making the decision, the decision is up to the child.

Generally speaking, the older the child, the more likely it is that s/he would be considered, “capable of knowing, voluntary and considered judgment.”  Obviously, a reasonably well-adjusted older teenager would be considered far more “capable” to make decisions regarding her/his interests than let’s say a five-year old.

Next time, I’ll continue writing about the role of an AFC, looking at the question:  What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?


 

[i] There are other situations where a lawyer may represent a child.  “In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child.” N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(c).

(For all of the text that I quote in this post, see https://casetext.com/regulation/new-york-codes-rules-and-regulations/title-22-judiciary/subtitle-a-judicial-administration/chapter-i-standards-and-administrative-policies/subchapter-a-rules-of-the-chief-judge/part-7-law-guardians/section-72-function-of-the-attorney-for-the-child.)

[ii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d).

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(1).

[iv] https://codes.findlaw.com/ny/domestic-relations-law/dom-sect-240.html

[v] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(2).

 

Litigation Risk Assessment: Lawyers Often Get It Wrong

     Imagine you are a client, and that a lawyer is representing you in a case.  The “other side” has made an offer to settle.  You ask your lawyer, “Should I accept the offer?” 

     You might think the answer would be straightforward.  Yet in perhaps two-thirds of cases examined in a study[i], one side or the other received a worse result at trial than the last offer from the other side.”

     This according to John Lande, Professor Emeritus at the University of Missouri School of Law and co-author of the book, Litigation Interest and Risk Assessment.  The book’s findings are that lawyers chronically underestimate their clients’ risk in litigation, and so make chronic errors in negotiating settlements. 

     Lande was interviewed by Peter Phillips, Director of New York Law School’s Alternative Dispute Resolution Program.[ii]  His book is “designed primarily for lawyers.”  But the subject is of enormous importance for almost anyone locked in a court battle.

     As Phillips put it, many lawyers “overvalue the claims of their clients, and so aren’t alert to opportunities to bring value” to them.

     If you’re a litigant, you don’t want this happening to you.

     Lande gave the illustration of a Plaintiff who receives an offer of $100,000 to settle a case.  The client rejects the offer,

presumably on the advice of his/her attorney, and gets a trial verdict for $50,000.  [This award at trial is] really bad, because you would have done much better to take the $100,000 offer and save all of the time and expense and grief of continuing the litigation and going to trial.

     There are myriad reasons why this happens, including, Lande says, because “Litigation is inherently risky and there are just so many factors that go into it, so it’s very hard to predict.”  That some parties get a worse result at trial doesn’t itself indicate a problem, Lande says; “but when you have sixty-some percent of cases where that happens, that to me is a problem.  It reflects some serious biases, some overconfidence in determining legal risks.” 

     If you have a court case, what should your lawyer be helping you take into account?

     There are the more concrete matters:

–the likely outcome at trial;

–litigation costs; and,

–legal fees.

But, Lande points out, there are also “intangible costs,” including:

–stress;

–lost opportunities;

–a damaged reputation; and,

–damaged relationships.[iii]

     “But people often don’t take these [considerations] into account when making decisions.”

     Consider the factors that Lande sets out, and how they apply to your life and situation, because, while lawsuits may be necessary when parties are unable to reach agreements, fighting to the bitter end will be especially acrid when you would have done better by settling.


 

[i]   Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations Randall L. KiserMartin A. Asher, Blakeley B. McShane, First published: 05 September 2008,

https://doi.org/10.1111/j.1740-1461.2008.00133.x.  The Abstract sets out that:

This study quantitatively evaluates the incidence and magnitude of errors made by  attorneys and their clients in unsuccessful settlement negotiations. The primary study analyzes 2,054 contested litigation cases in which the plaintiffs and defendants conducted settlement negotiations, decided to reject the adverse party’s settlement proposal, and proceeded to arbitration or trial. The parties’ settlement positions are compared with the ultimate award or verdict, revealing a high incidence of decision‐making error by both plaintiffs and defendants.

[ii] The interview can be found at: https://www.youtube.com/watch?v=0fY7FPRy8cs).

[iii] When it comes to family and divorce disputes, damaged relationships can be especially devastating.  Consider the emotional costs to family members when parents battle over custody of their young children.  Often, due to fear, anger and stress (and sometimes at the encouragement of their attorneys), one or both parties make accusations that may be exaggerated or even made up.  It can be easily understood how such conduct can damage the parenting relationship, perhaps permanently, hurting the parents, and especially their children.

The risk of damaged relationships is in no way limited to couples getting separated and divorced.  Disputes between siblings, business associates, neighbor and neighbor, to name a few, can badly harm relationships, sometimes irreversibly.

Questions to ask – and hopefully your attorney is asking you – include:

–How important is the relationship to everyone involved?

–Is it very likely to be damaged?

–In light of these questions, and other relevant considerations, is litigation the option that makes the most sense for you?

 

How Long Would Mediation Take in My Case?

Elsewhere, I have written about on “Why Mediation Is Faster than Going to Court”.  Here, I want to share information about how long you should expect mediation to take in your case.

As something of a baseline, many spouses complete divorce mediation within three to six months.  Of course, a case may take more time, or less.  But what can you expect?  The answer greatly depends on you and your spouse or partner.  Consider the following factors:

Complexity of the case:  Some cases take longer than others because there are more issues to deal with.  Do you have children, own a home, have investments and so on?  You’ll have more work to do than couples that don’t.  Parents having three children may need more time to discuss and reach agreement on their kids than parents with one.  If a child has special needs, that too may warrant a longer conversation and perhaps the gathering of additional information.  Have a Picasso?  You might want to have that appraised, and scheduling that appointment may take time.  Far more common is meeting with an accountant, financial planner or lawyer.

Communication between you:  Can you and your spouse speak civilly and listen to each other? Or, do you bicker constantly?  It shouldn’t be surprising that couples who communicate fairly well go through the mediation process more quickly than those that don’t.

There are spouses who can even work well together outside of sessions.  If that is you, so much the better; you’ll not only save time, but money as well, as there will be less to mediate about.

Doing the work that’s required outside of sessions:  At a session, did you tell the mediator that you would have that Picasso valued, but just can’t seem to find the time?  Yeah, that will hold things up, the same as if you don’t find out what your home is worth, or gather bank statements and other information that needs to be discussed.

Length of sessions:  If you have the information you need and are ready to discuss it, you can accomplish more in a two-hour session than a one-hour session, allowing for fewer (but longer) sessions overall, and maybe over a shorter period of time.  But making sessions longer only makes sense up to a point.  (Some parties prefer to stop after one hour, and in those cases, that is what we do.)

Even after ninety minutes or the two-hour mark, many people are tired, and it doesn’t help clients to keep going if they aren’t thinking clearly; the same can be said of the mediator.  Marathon sessions, lasting for hours – in which some divorce mediators engage – doesn’t make sense to me, and so I don’t do it.

Your respective schedules:  If you both are available to meet pretty regularly, and without much time between sessions (say, every week or two), the mediation will go quickly.  But there may be a demanding work schedule, perhaps including out-of-town travel.  There are parenting responsibilities that trump everything else.  Holidays and birthdays, school plays and work functions.  Planned vacations and the unexpected broken pipe.   A lot of what can affect the length of the mediation may have nothing to do with your separation or divorce, but rather with the other things going on in your lives.

Conclusion:  Consideration of these factors should give you a good sense of how much time mediation would take in your situation.  Again, if you are like most people, the chances are very good that you would complete the process within three to six months.  But wherever you are on the continuum – or even if you fall outside of it – if you and your spouse or partner are good candidates, you can expect to spend a whole lot less time (and money) in mediation than you would fighting it out in court.

Parentification: A Damaging Role Reversal

Separation and divorce can be devastating.  “Jennifer”, who hadn’t wanted the split, cried continuously for days.   She felt sick, and had to force herself to eat.  Her every thought included painful ruminations on what she had or hadn’t done, fears about money, self-sufficiency and loneliness.  An expensive and bitter court battle appeared likely, and Jennifer was overwhelmed.

During divorce, when we need to be at our best for our children, we are often at our worst.  Feeling vulnerable, we may lean on our kids more than is healthy.

Parentification, a type of role reversal where a child cares for the parent rather than the other way around, is a prime example.  For a weary, even shattered adult, relying on a child can ease the burden; but, it is damaging to the child.

Ari E. Fox, LCSW, a child and adolescent therapist in New York City, told me that “parentification can rob an individual of his childhood by placing an enormous level of stress on the child, forcing him to grow up too quickly,” and that the parent may turn the child into a full-fledged confidant or even a pseudo spouse.

A child may also be relied upon to perform an excessive amount of the chores and take care of younger siblings.

Of course, assigning chores and having a mature older sibling babysit on occasion can help children learn responsibility (and make your life easier); and, sharing a certain amount of information with them is necessary.  An example:  If you need to move to a new home, it is better to tell your children beforehand so that they have time to adjust, rather than surprising them with the news the night before.

So what are the limits?  What is appropriate to share with a child?  Ask yourself the following:

Do you think of your child as your “best friend”?  Upon coming home from a date, do you share many details with your son or daughter?  When dealing with stress, do you look to your child, figuratively or literally for a shoulder to cry on?

If so, you may well be crossing a line, to the detriment of your child.  Granted, older teenagers can generally handle more than younger children.  But, there should be very real boundaries.

It is one thing to breakdown in front of your children on occasion.  This happens, and can even have a positive side in that it allows children to see that you are human.  But, such an experience can be very frightening – children need to know that you are in control, and may wonder “If Mom (or Dad) can’t take care of herself, how can she take care of me?”

So after the well-deserved meltdown, let your child know you are alright.  Maybe say, “I’m sorry about the crying/sad faces/slamming the door.  Sometimes it’s hard, and I don’t handle the stress so well.  But mostly, I’m doing okay.  The time I spend at Aunt Judy’s/swimming/the support group/taking my computer class really helps me.  I know we’ll get through this and that things will get better.”

Be aware:  children may not see any problem in acting the adult. Hearing about the new man or woman in your life can make a daughter or son feel grown up, and what kid doesn’t want that sometimes?

But, while children may seem to handle the grownup role, they pay a price.  Fox noted that parentified children “often have difficulty with attachment and struggle with relationships as adults.  They can become quite angry at their plight and what they have given up in their lives.”

We all need help sometimes – but shouldn’t look to our children for it during divorce.  Consider a support group, therapist or divorce coach.  Do what you need to strengthen yourself – and let your child worry about his next math test, acne and getting a date with that girl he likes.

The Costs of Arbitration

Most of you are familiar with litigation, where parties often have attorneys representing them, and there may be a trial (though most cases ultimately settle).  A judge makes the decisions.  Litigation is usually very expensive, takes a long time (often years), and is harmful to relationships.

In mediation (as I and many mediators practice it), a third party (the mediator) help the parties to communicate and reach agreements that will resolve, or at least manage, their disputes.  Generally, mediation is much faster and less expensive than litigation, and because the parties work together, the relationships between them are often less damaged than if they had gone to court.

Then there is arbitration.  In this process, the arbitrator(s) make the decisions, like a judge would – and some arbitrators are former judges.  Faster than litigation, arbitration is often touted as less expensive as well.  But is it?

On April 30th, 2021, The ADR Times published an article entitled, How Much Does Arbitration Cost?[i]  The article refers to a survey of corporate counsel that “found 51% considered arbitration to be more expensive than litigation” (emphasis added). “[A]nother survey put the number at 39%,” which the article notes “is still quite significant.”

Trained as an arbitrator myself, for attorney-client fee-dispute cases, I was well aware that client expenses for arbitration can be substantial.  Still, these numbers surprised me.  Where do the expenses come from?

As the article states, “Potential costs are:

  1. Filing fees
  2. Hearing fees
  3. Administration fees
  4. Administrative expenses[ii]
  5. Hearing room rental
  6. Arbitrator and/or mediator fees
  7. Discovery costs
  8. Attorneys’ fees

According to the article, “Technically, you don’t need a lawyer to participate in the arbitration. But realistically you do.”[iii]

A few words on ‘Discovery’,[iv]  which refers to both getting information from the other party, and providing it.[v]  “Research shows that discovery accounts for 50% of the cost of litigation, for very little return.” (Emphasis added.)

But what does discovery have to do with arbitration?

The answer:  In arbitration, “Lawyers are agreeing to expand discovery and related motion practice so that arbitrations looks like litigation.”  Quoting Professor Tom Stipanowich, the article says that “arbitration is becoming judicialized.”

You may have no choice as to whether to go to arbitration if you have a dispute; it depends on the contract.[vi]  If you have a say, arbitration is worthy of consideration.  But investigate and consider your options carefully, as arbitration may

___________________________________________________________________

[i] https://www.adrtimes.com/how-much-does-arbitration-cost/?utm_medium=email&utm_campaign=Weekly%20ADR%20Times&utm_content=Weekly %20ADR%20Times+CID_8b3cc4d27cfbf76d3ed1eb588912a22e&utm_source=Campai gn%20Monitor&utm_term=How%20much%20does%20arbitration%20cost

[ii] I am unable to say what the difference is between “Administration fees” and “Administrative expenses,” C. and D above.

[iii] Of course, the type of case, the amount in dispute, and other factors need to be taken into account.  In the attorney-client fee-dispute program, some clients have attorneys representing them, but more do not, in my experience.  That said, more clients might hire attorneys to handle their arbitrations if it were not expensive to do so.

[iv] Part of the reason that discovery is so expensive is that parties, often counseled by their attorneys, make it terribly difficult to get information from the other client.  By contrast, in mediation, parties share information with one another.  Mediation clients can have attorneys, but there is no ‘discovery’ (no depositions, interrogatories, etc.)

[v] A fuller definition – from Law.com – is:

the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.

[vi] Many, if not all, credit card companies require arbitration if there is a conflict.  Employment and other contracts may have this requirement as well.

 

Early Neutral Evaluations and Mini Trials – What they Are

In recent weeks, I have been discussing New York State’s plans for introducing and expanding alternative dispute resolution (ADR) programs. I have talked about the judiciary’s press release, and an Interim Report and Recommendations that have been submitted. See:  

More Mediation Soon to Take Place in New York – Much More;

Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 1); and,

Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 2).

Today, I would like to mention and give definitions of two ADR processes that many New Yorkers may be unaware of:  Early Neutral Evaluation and Mini-trial.

Early Neutral Evaluations

On the American Bar Association’s website, it says:

  • Early neutral evaluation is a process that may take place soon after a case has been filed in court. The case is referred to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute. The parties either submit written comments or meet in person with the expert. The expert identifies each side’s strengths and weaknesses and provides an evaluation of the likely outcome of a trial. This evaluation can assist the parties in assessing their case and may propel them towards a settlement.

Mini-trials

Also as set out on the American Bar Association website:

  • A mini-trial  is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a trial. The presentations are observed by a neutral advisor and by representatives (usually high-level business executives) from each side who have authority to settle the dispute. At the end of the presentations, the representatives attempt to settle the dispute. If the representatives fail to settle the dispute, the neutral advisor, at the request of the parties, may serve as a mediator or may issue a non-binding opinion as to the likely outcome in court.

If you file a lawsuit, can you expect to engage in either a mini-trial, or to have the case handed to an early neutral evaluator?  The answer depends on at least two factors.

  1. The timeframe:  As I’ve discussed, New York State will be expanding successful existing ADR programs, and instituting others.  But New York is a big place.  In many parts of the State, it will be months, and maybe years, before ADR programs are fully up and running.  If you bring a case (or have one brought against you) tomorrow, you may or may not be told that your case should be handled – at least initially – through an ADR process.  But a year from today – and more so two and three years from today – the likelihood of your case being dealt with through an ADR process should increase greatly.                                                                                                                                                                                It is possible that in the meantime, parties can request to engage in ADR, and depending on the resources of the courts, the request will be followed.                                                                                                                                                      If the parties were to agree that they wanted to try mediation – discussed elsewhere in many of my articles, on my blog) and on my website generally –  and if they were agreed on a private mediator to use for the process, many judges are willing to allow the mediation – but of course, the court’s permission should be sought, and your lawyer’s advice, if you have an attorney.

  2. The type of case:  The greater use of ADR will mostly be seen in civil cases, as opposed to criminal cases.                                                                                                                                                                                                                      Civil cases primarily dealing with money are more likely to go to an early neutral evaluator or to a mini-trial than other cases.  At a recent meeting I attended on “presumptive ADR” the following example was given.  Paraphrasing, it went like this:

                                                                                                                          Suppose someone breaks an arm, and a personal injury case is begun.  There have been many such cases, and the cases have evidence from doctors on the extent of the damage done.  Everybody in the process – the judge, the attorneys for the parties, and the parties themselves (after being informed by their lawyers) knows how much the ultimate award for the broken arm will be.  They know this even before the case begins.

    Such a case is probably a good candidate for early neutral evaluation (or, I would think a mini-trial).

    The final result of having an early neutral evaluator handling the case, and a negotiated settlement based on the evaluator’s findings, is likely to be the same or similar to what would happen if the case were litigated over a period of years.  The time and money saved by the parties will probably be very substantial.  The lessened burden on the parties and on the court will also be significant.

    Contrast the above “broken arm” (personal injury) case to a divorce case.  While divorce cases, especially ones involving children, often have very significant financial aspects to them (division of property, spousal maintenance a.k.a. alimony, child support), divorces are largely about relationships – the relationships between the spouses, and between the parents and each child.

    (To be sure, a personal injury case is often emotional as well.  However, usually the relationship is secondary or nonexistent.  For instance, if I slip and fall on a sidewalk, I probably don’t have any relationship with the home or business owner who is responsible for clearing the sidewalk.)

    A divorce case, or a family case, is far different from a personal injury case.  Divorce and family cases tend to defy one size solutions that fit all couples or families – as opposed to the broken arm case where the ‘value’ of the injury can be pretty well determined.

    Divorce and family cases often benefit from the parties working together to create solutions that serve everyone involved.  For such cases, we can expect mediation to be the ‘go-to’ process, rather than early neutral evaluation, or even a mini-trial.                                                                                                                               This blog is for information purposes and does not constitute legal advice.  Please consider speaking with an attorney about any case you have or are considering bringing. 

Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 2)

Last week, I began writing about New York State’s “Interim Report and Recommendations (Report)” regarding “Presumptive Alternative Dispute Resolution (ADR).”  Here, I will continue to discuss the Report further.  New York plans on greatly expanding existing mediation and other programs and initiating new ones.  The programs will deal with many types of ‘civil’ cases, from small claims to personal injury to matrimonial and more.

In part, the move toward the far greater use of mediation, arbitration, and early-neutral evaluation – some of the ‘alternative’ methods of resolving conflicts, as opposed to litigation – is the recognition of serious problems with the status quo.  For instance, many courts have long backlogs of cases.  (In one county, and maybe more, a year can pass between the time a separation agreement for a divorce is filed with the court, and when a judge signs it.)

Cases often take months – and not uncommonly years of litigation; such long delays mean at the very least a delay of justice.  Arguably, and in more than a few instances, such lengthy delays can result in the denial of any real justice at all, as the parties involved would define it.

A significant problem that has some correlation to the years of motions and trial practice that so many litigants face is the cost of bringing or defending an action.  The Report states that:

  • The cost of litigating to a final judgment often represents such a high percentage of the amount in controversy that the parties find litigating to a final judicial decision is unaffordable.

What does this mean to parties?

For some, the high costs of litigation mean that a party will essentially give in to the other side at some point, after realizing that they don’t have the resources to continue battling.  For many others, the prospect of incurring bills amounting to five or six figures results in choosing not to bring or defend a case at all.  In these instances, justice may have nothing to do with the calculation.  Sadly, far too many New Yorkers simply can’t afford justice, and so do not receive it.

The Report notes that:

  • New York and other courts have long administered or sponsored efforts to promote more streamlined achievement of final decisions or negotiated settlements, including: (1) a wide variety of court conferencing processes led by judges or court personnel; (2) referrals of disputes to dedicated court staff neutrals; (3) organization of “settlement days” in which courts try to resolve large numbers of disputes involving the same defendant in a focused negotiation effort; (4) mediations; (5) arbitrations; (6) neutral evaluations; (7) summary mini-trials; and (8) accelerated fast-track litigations.

But, these efforts over the years, which might be characterized as piecemeal, haven’t been nearly enough.  A tremendous amount of work will need to be done before courts will notice a significant reduction in backlogs.  The increased scale of ADR within the state will have to be enormous – and, it promises to be.

In regard to mediation, one goal is to have parties begin the process “shortly after the litigation has commenced.”  This aim recognizes that parties have a better chance of constructively resolving their disputes if their conflicts are addressed through mediation early.  As the parties get more deeply mired in litigation, hostilities usually rise, and the possibility of working together toward a mutually satisfactory agreement becomes more difficult to achieve.

The plans for presumptive mediation in New York are ambitious.  But the judiciary appears to be dead serious about making it happen.  No doubt, implementation will encounter some difficulties, both foreseen and unexpected.  However, the Interim Report and Recommendations is thoughtful and encouraging for those of us who believe that often, there are better ways to handle disputes than fighting them out in front of a judge.

 

Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 1)

Last week, I wrote about “presumptive alternative dispute resolution,” which New York will be introducing (and expanding) throughout the state.  Primarily, I addressed mediation in that post. Here I want to continue on the topic of Presumptive Alternative Dispute Resolution (ADR), because the changes will be so significant and far reaching for New Yorkers.

But first, what is ADR?

“Alternative Dispute Resolution” refers to ways of managing and settling disputes without litigating them.  Because litigation is the way that so many conflicts have been (and continue to be) handled, other manners of dealing with disputes have been labeled as “alternative” methods.  The term – which includes the processes of mediation, arbitration, neutral evaluation and others – has not always been used with respect by some members of the legal community.  Nevertheless, ADR is set to become much more prominent in New York over the coming months and years.

The further adoption of ADR in the State, which will allow many parties to save time and money, is long overdue.  In the case of mediation especially, parties will have more control over the outcomes of their cases and suffer less stress.  Relationships that are so often badly damaged or destroyed during litigation (think divorce, for example) are significantly more likely to remain respectful and functional during and after mediation, which encourages disputants to share their stories, listen to each other and mutually agree on how to move forward.

A Statewide ADR Advisory Committee has issued an Interim Report and Recommendations.  Here are a few of the highlights:

  • There will be “increased training and education about court-sponsored mediation for judges, judicial administrators, court staff, advocates, parties, mediators, and the general public”;
  • Rules requiring “attorneys to become familiar with mediation and other processes, to discuss with clients both mediation and other potential alternatives to conventional litigation and to discuss ADR options with opposing counsel in good faith” will be promulgated.  [In the past, many (but by no means all) litigators have not informed potential clients about mediation and other ways to handle disputes.  If a client raises the idea of mediation, some litigators will speak of the process in disparaging terms.  Back in 2015, I shared my thinking that lawyers who failed to inform clients about mediation were committing an ethical violation of their professional obligations:                                                                                                                                                                                                                                           According to Section B of Rule 1.4 of the New York Rules of Professional Conduct, entitled “Communication,” a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representa­tion.”                                                                                                                                                                                                                                                  Is it ‘reasonably necessary’ for a divorce lawyer to tell a potential client that there is another way to get a divorce without litigating in court? I think so — if that client is to know enough to make an informed decision regarding the representation.                                                                                                                                                                                                                                                It will be interesting to see how willingly attorneys deal with this responsibility in the future.]
  • Engage with and reach out to the legal community and law students concerning early mediation and other forms of ADR.  [Teaching law students, who are generally young and who of course will first be beginning their legal careers, more about ADR should go a long way toward changing our litigious culture over time.]                                                                                                                                The Interim Report has much more to say.  I expect to continue discussing it next week.

More Mediation Soon to Take Place in New York – Much More

On July 11th, a meeting was held at John Jay College of Criminal Justice.  The meeting – on expanding the use of mediation and other types of “alternative dispute resolution” (ADR) in New York State – was led by Lisa Denig, Special Counsel for ADR Initiatives, Office of Deputy Chief Administrative Judge George Silver.

This meeting followed a May 14th press release from the New York State Unified Court system stating that:

  • In a transformational move to advance the delivery and quality of civil justice in New York as part of the Chief Judge’s Excellence Initiative, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks today announced a systemwide initiative in which, aside from appropriate exceptions, parties in civil cases will be referred to mediation or some other form of alternative dispute resolution (ADR) as the first step in the case proceeding in court. Dubbed “presumptive ADR,” this model builds on prior successes of ADR in New York State and in other jurisdictions by referring cases routinely to mediation and other forms of ADR earlier in the life of a contested matter.
  • A broad range of civil cases, from personal injury and matrimonial cases to estate matters and commercial disputes, will, at the onset of the case, be directed to ADR ̶ which comprises a variety of resolution approaches ̶with a focus on court-sponsored mediation.

Mediation – as the word is commonly used – may require the mediator to play a number of roles when working with parties engaged in a dispute.  A mediator:

  • acts as a neutral third party;
  • helps the disputants to listen to and better understand each other;
  • assists the parties in gathering and sharing information they need to consider;
  • works with the parties so that ideally the parties themselves develop options that may allow them to move forward;
  • helps the disputants to consider their options so that they can make the best decisions possible; and,
  • engages the parties in ‘reality testing’ to ensure to the extent possible that their choices are feasible.

It is expected that the expanded use of ADR in the state will lower costs for parties, allow for faster resolution of matters, and “improv[e] case outcomes.”

What does this mean in practical terms?  Taking matrimonial cases as an example, many spouses are likely to reach their divorce agreements in a matter of months, rather than years.  They will often spend a few thousand dollars, rather than tens or hundreds of thousands of dollars.  Though the spouses may not part as friends, in many instances they will experience less stress and bitterness than if they were to litigate.  Emotionally, parents and children will usually benefit as a result.

The press release notes that, “Court-sponsored ADR has a proven record of success, with high settlement rates and strong user satisfaction among litigants and lawyers.”

In September, administrative judges around the state are required to share information about how the expansion of ADR will proceed.  (It should be noted that numerous ADR programs already exist in New York; however, they are considered to be “under-utilized.”)  Rolling out the new programs will take time.  Not everything will be ready all at once.  But it appears that over the coming months and years, New York will join other states that encourage parties to resolve whatever issues they can without the adversity and expense that litigation so frequently incurs.

Mediation, and ADR more generally, is not a panacea.  Not every case will be settled using these processes.  But many will, and this is excellent news for the parties, an overwhelmed and backed up judiciary, and New York State.