Building a Safe Place for Mediation In Arbitration Proceedings

NYLJ

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PUBLISHED ON: August 5, 2019

Just as New York state courts have announced a presumptive mediation model for civil cases to begin in the fall (Dan M. Clark, ”New York Courts to Begin Presumptive Mediation for Civil Cases Later This Year,” N.Y.L.J., May 16,2019), it is a critical time for the arbitration community to consider a blueprint for increasing the use of mediation so that settlement rates in arbitration can be competitive with litigation. In the course of an arbitration there should be strategically timed mandatory “check ins” with ADR case administrators built into procedural orders to test whether prospects for mediation may improve as cases progress.

Case administrators may act as important screeners to allow the parties a safe zone to raise their openness to mediate at various stages, at the inception of the matter, after key disclosures or depositions and at an interim conference call before the arbitration hearing. Moreover, arbitrators should not rule out the possibility that there still may be an opportunity to settle after the close of the hearing but before the arbitration award is issued—counsel’s optimistic view of the case may change even this late in the game. Establishing a mechanism in the order allows a case administrator to assume a role similar to court administrators in New York’s mandatory court mediation programs and may lead to similar settlement rates.

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