From the NYC-DR Listserv

Plan to Require Mediation Notice Stirs Up State Bar
Joel Stashenko
New York Law Review
11-12-2010

ALBANY - A proposal to require lawyers to notify their clients that disputes can be settled through mediation as well as litigation has stirred considerable opposition within the New York State
Bar Association.

A resolution of the group's Dispute Resolution Section supporting the requirement was abruptly taken off of the House of Delegates' agenda Saturday after several objections were raised.

See the proposed resolution and the Dispute Resolution Section's report .

Critics are concerned the proposal would force attorneys to promote mediation even when they do not believe the technique would be effective or appropriate for their clients.

Simeon H. Baum, a mediation proponent who was to have presented the notification proposal to the House of Delegates, said in an interview Wednesday that it is "an open question" whether the resolution can be salvaged.

"The next steps will be to have further discussions, find out what the concerns are and try to address them," he said. "Is maybe a different approach altogether better? We are basically maintaining an open mind, which would certainly be in keeping with our model [of dispute resolution]."

The proposal would require the "prompt" delivery to a client when a retainer agreement is signed of a "Notice of Mediation Alternative."

The recommended notice states, "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," but it adds, "Mediation services are available that may help you settle your lawsuit faster and before substantial expenses are incurred."

The section also backs amendment of the Rules of the Chief Administrative Judge, §1210.2, to add to the existing Statement of Clients Rights information about the benefits of mediation.

"Mediation is most effective in reducing costs if used early in the course of a lawsuit," the proposed rule change reads. "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."

According to a report from the Dispute Resolution Section, the development of both alternative dispute resolution panels and community dispute resolution centers has created forums for diverting disputes from the courts.

Some 100,000 people a year are being heard through dispute resolution centers, the section said.

"Now that these services are in place, and are known to Courts and counsel, it is time to increase the use of mediation by parties who can benefit from this process," the section reported. "With roughly 2.5 million non-criminal cases filed in New York state each year, it is beyond doubt that parties and the heavily burdened, financially challenged courts could benefit greatly from wider use of mediation by the public."

Peter H. Woodin, chairman of the New York City Bar's Committee on Alternative Dispute Resolution, endorsed the proposal, saying it is similar to a policy statement the city bar adopted in 1995.

But Joseph E. Neuhaus, chairman of the state bar's Committee on Standards of Attorney Conduct, wrote to the Dispute Resolution Section that his committee has several problems with the proposal.

For starters, according to Mr. Neuhaus, the notice "inappropriately intrudes" on the latitude lawyers have in giving advice to clients.

"The decision about whether and when to advise clients of the availability of mediation is one that should be left to each individual lawyer, who knows the client and the client's manner," wrote Mr. Neuhaus, of Sullivan & Cromwell.

He added that mediation is not a "one-size-fits-all" solution and that in some circumstances, a bitter marital dispute, for instance, mediation would stand little chance of success.

Also, Mr. Neuhaus said members of his committee are worried that mandatory notification could encourage legal malpractice actions if the required notification is not made or is not understood by the client.

'Imbalance of Power'

The state bar's Committee on Legal Aid also challenged the proposal as written, according to its chairman, C. Kenneth Perri of Legal Assistance of Western New York.

Mr. Perri wrote to the state bar expressing concern that access to justice will be curtailed if pro-bono lawyers are not exempted from the notification requirement and "the potential safety and other issues created by the proposal's failure to provide an exemption for attorneys representing domestic violence victims."

George H. Lowe, a federal magistrate judge for the Northern District and co-chair of the state bar's President's Committee on Access to Justice, said his committee has similar objections to those raised by Mr. Perri.

"Mediation is almost never an appropriate alternative for resolving a dispute between a domestic violence victim and the perpetrator of domestic violence in any litigation involving these parties, whether it be a family law or another type of dispute," the magistrate judge wrote to the bar. "The imbalance of power between an abuser and a victim is simply too great to believe that mediation will work. And the risk of further manipulation or victimization of the abused party is too
significant to allow."

Mr. Baum said the Dispute Resolution Section regarded its proposal as "educational," and that it was important that lawyers did not feel it "was being shoved down their throats."

He acknowledged that the issue of mediation in domestic violence cases is complex, and said that opinions vary about its effectiveness. But he said a program in Dutchess County that mediates such cases has met with "a lot of success."

In general, he said, mediation has been successful in resolving disputes over business, trusts and estate, and insurance and reinsurance in particular.

"No one is suggesting here that we should back away from the use of mediation," Mr. Baum said.

State court administrators have tried to encourage the greater use of mediators.

In 2008, the Office of Court Administration established the first  guidelines for the training of mediators and neutral evaluators, citing the growing popularity of alternative methods for resolving disputes (NYLJ, July 24, 2008 ).

The same year, the state bar elevated its dispute resolution committee to a section.

According to Mr. Baum, the state bar's ADR committee he chaired had 93 members
when it became a section. It now has 2,500, he said.

"I think it is just a recognition of how important alternative methods of dispute resolution have become and how much interest there is in them," said Mr. Baum, president of Resolve Mediation Services in Manhattan.

@|Joel Stashenko can be contacted at jstashenko@alm.com.