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.