The Underutilization of Mediation in New York and What Should Be Done About It?

NYSBA New York Dispute Resolution Lawyer

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PUBLISHED ON: October 4, 2018

History certainly shows us that mediation, arbitration, and other forms of dispute resolution have been with us from time immemorial. Many recognize the significant benefits to mediation such as party autonomy, reduced costs, confidentiality, preservation of business and family relationships, as well as agreements that can provide speedier relief and offer some remedies that would not be available in court. At the same time, people have also recognized that there are some limitations to the process of mediation: it is not appropriate for all types of cases; it does not always result in settlement; it lacks the procedural and constitutional protections guaranteed in the federal and state courts; legal precedents cannot be set in mediation, and it often lacks a formal discovery process. However, in many cases where the advantages of mediation outweigh the disadvantages, the mediation process is either not explored at all or underutilized. With all the benefits in cases where mediation is appropriate and would provide overwhelming benefits to parties as well as to the civil justice system, why is it underutilized in New York both in court-annexed programs and among ADR provider organizations. Or it may be more appropriate to ask, given the success of many(but not all) of the mediation pilot programs in New York, is it time to ensure a more comprehensive approach to ADR in New York and admit that perhaps the time may be ripe (in cases where mediation is appropriate) to move to a post-pilot era?

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