NYSBA Proposal for Mandatory Mediation Notice—And Resistance to It

The New York State Bar Association finds itself in the forefront of the debate over the expanding role of ADR this week after it decided to table a proposal that would require lawyers to notify their clients of mediation as an alternative to litigation. The proposal was supported by the Bar Association’s Dispute Resolution Section, whose complete report is available here. Under the proposal, an attorney “whose client’s matter involves a conflict or dispute that may result in a lawsuit” would be required to deliver to the client the following Notice of Mediation Alternative:

NOTICE OF MEDIATION ALTERNATIVE

As a party or potential party to a lawsuit, you have the right to a trial in which a judge or a jury decides your case. However, over 90% of all lawsuits are resolved or settled before a trial takes place, even where the parties initially believed that settlement was not possible. Settlement reduces the expense and inconvenience of litigation and the uncertainty about the results of a trial and any appeals. Mediation services are available that may help you settle your lawsuit faster and before substantial expenses are incurred. Mediation is most effective in reducing costs if used early in the course of a lawsuit. A mediator can assist the parties and their attorneys in obtaining the information they need to evaluate their case more quickly and efficiently than by traditional formal discovery. You should discuss with your lawyer the issue of whether mediation might be appropriate in your case and, if so, when and how to best make use of the mediation process. Participation in mediation is entirely voluntary unless ordered by the court. The services of a mediator may be obtained privately or with the assistance of the court.

 

What Mediation Is and How It Works

Mediation is a confidential process in which the mediator helps the parties reach a settlement. The process is private, informal and non-binding. The parties, assisted by their lawyers, participate fully in the process and retain control of the outcome. Mediators can help the parties communicate constructively and overcome hostilities that may interfere with making a rational cost/benefit or risk/reward analysis between settlement and the costs and uncertainties of litigation. Mediators may also serve as unbiased “agents of reality” who help the parties objectively assess their litigation alternatives. By meeting privately in separate confidential sessions with each party and its counsel, the mediator can help the parties ascertain their real interests and concerns and objectively assess the weaknesses as well as the strengths of their case, hopefully leading to a mutually agreeable settlement. In addition, a mediator can help generate solutions not previously considered by the parties that may reach beyond the scope of the remedies available in a court determination. If the mediation does not result in a settlement, the parties can continue their lawsuit and proceed to a trial. If the mediation results in a settlement, the resulting settlement agreement is binding.

 

Selecting a Mediator

Some mediators are facilitative in that they generally will not make settlement proposals or give their evaluation as to the likely outcome in litigation if the dispute does not settle. Others may be willing to be evaluative when necessary in order to help a party be more realistic about its case (usually in a private and confidential meeting with that party). You and your lawyer should consider these different styles and approaches

to mediation when selecting a mediator. Your lawyer will be available to help you select a mediator and serve as your representative throughout the mediation process. You should discuss with your lawyer any questions you may have about mediation and how it might be beneficial in your case.

 

The proposal has encountered resistance from several corners, including from the Chair of the Committee on Standards of Attorney Conduct, who expressed concern that the notice would inappropriately intrude on lawyers’ latitude to give clients advice, and from the Chair of the Committee on Legal Aid, who suggested that pro bono attorneys should be exempted from the requirement and that an exception should be made for domestic violence cases. The proposal has been taken off the House of Delegates’ agenda for now to allow for more input and discussion.

3 thoughts on “NYSBA Proposal for Mandatory Mediation Notice—And Resistance to It”

  1. I’m failing to find any support for the assertion from the Chair of the Committee on Standards of Attorney Conduct that this disclosure would infringe upon attorney’s latitude to give advice. Attorney’s have a duty to discuss all available resolution options, including mediation, when advising clients. Attorneys should not make a preliminary process determination that forecloses upon a client’s right to non-litigation resolution.

    In my limited experience in the legal field, I have noticed a general tendency to foreclose upon mediation as an option for dispute resolution. A substantial number of clients, as well as attorneys, have a fragmented and incomplete understanding of the process. Perhaps this disclosure is necessary to educate them both.

  2. I too find it troubling that the Chair of the Committee on Standards of Attorney Conduct believes that a mandatory mediation notice would “inappropriately intrude on lawyers’ latitude to give clients advice.” Such an assertion demonstrates the lack of understanding that many individuals, attorneys included, have about alternative dispute resolution processes such as mediation. It seems as though many attorneys are uncomfortable with these alternative systems simply because they are ‘new’ and different. However, it is a mistake to dismiss outright processes that may efficiently and adequately meet their client’s needs.

    Also, it seems as though many attorneys disregard such processes for fear of what effects they may have on the legal profession. These attorneys, in my opinion, have entirely the wrong mindset. Instead, attorneys should learn more about these systems and gain more experience with them in order to discover how attorneys may be included.

    “If lawyers do not represent conflict resolution in our public culture, then what is their function.”
    Julie Macfarlane, THE NEW LAWYER

    Surely attorneys will still have a role in dispute resolution; it is our job, especially as young lawyers, to discover what form such a role will take. Requiring attorneys to discuss mediation with their clients as an option for dispute resolution is a small but important step in the right direction.

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