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N.Y.
Court Establishes First Statewide Joel Stashenko New York has established for the first time statewide guidelines for the qualifications and training of mediators and neutral evaluators who are called into cases by judges seeking to encourage out-of-court settlements. Chief Administrative Judge Ann Pfau issued the new rules earlier this month with the approval of the Administrative Board of the Courts, which is comprised of Chief Judge Judith S. Kaye and the presiding justices of the four Appellate Division departments. The guidelines require that mediators who want to make the rosters from which judges make assignments must have at least 24 hours of training in basic mediation skills and at least 16 hours of additional training in specific mediation techniques in the types of cases referred to them. The rules also limit those wanting to be assigned as neutral evaluators to those who have practiced law or served as judges for at least five years with "substantial experience" in the kinds of cases referred to them. Mediators seek common ground between adversarial parties on which mutually acceptable terms can be reached for settlements. Neutral evaluators gather evidence from the parties and give an opinion about what the parties can expect as the outcome if their dispute goes before a court. The guidelines require continuing legal education of at least six hours every two years for both mediators and neutrals. Establishment of the guidelines represents a coming of age for alternative dispute resolution (ADR) and is acknowledgement of its growing use by courts in New York, Pfau said. "We thought that the ADR program in this state had reached a point of maturity and acceptance where it made sense to have uniform standards for all mediators in the state," she said in an interview. "I think this will be very helpful in continuing to develop this very vibrant ADR program that we have." Until now, administrative judges have set the qualification requirements for the mediators and neutral evaluators on court rosters. Daniel M. Weitz, ADR coordinator for the Office of Court Administration, said many of the "several hundreds" of neutrals on the rosters already meet the requirements but that others may be some hours short and will have to receive more training to stay listed. The qualifications for court-appointed mediators are similar to those recommended by an advisory group to the OCA. A member of the group, Simeon Baum of Resolve Mediation Services in Manhattan, said Wednesday that training sessions for would-be mediators typically last for three days or about 24 hours total. "I think this is further evidence that ADR is here on the scene," said Baum, the first chairman of the New York State Bar Association's newly formed Section on Dispute Resolution. "It shows a greater level of sophistication in recognizing that people are going to be engaged in a refinement of mediation practices." Baum said that the popularity of ADR grew starting in the 1990s as parties, especially in commercial and matrimonial cases, began to see its success at reaching settlements in sometimes-acrimonious disputes and avoiding costly litigation. Court-appointed arbitrators have their own qualifications rules under the state courts' Community Dispute Resolution Centers Program and are not covered by Pfau's decree. Arbitrators are most typically called in to decide small claims cases, according to Weitz. The new guidelines also do not apply to private mediators or neutrals called in by parties in disputes outside the aegis of the courts. "It only has bearing on the courts, but it might have an indirect impact on the broader mediation field because people will start to see standards being set," Baum said. Pfau's rules also recognize the potential for blending the roles of mediator and neutral evaluator, a source of some controversy in the ADR field. Lela P. Love, director of the Cardozo Mediation Clinic at the Benjamin N. Cardozo School of Law, said it has long been in dispute whether the role of mediator, which entails acting as a facilitator of a settlement, can be performed along with the more disinterested functions of a neutral. The new rules stipulate that the same neutral in the same case can perform the two roles, provided that person meets the training and background requirements of both mediator and neutral evaluator. "Frankly, that issue has never truly been resolved, but it is a little resolved by this rule," Love said Wednesday. "I think New York is going to become a leader by the promulgation of this rule." Love was also a member of the OCA advisory committee on professional qualifications and other ADR issues. If the courts are going to put their imprimatur on ADR by maintaining rosters of neutrals, it is also in the courts' best interests to set standards for their qualifications and continuing education, Love said. "It should be good, it better be good, if it is a public system," she said. "The education and training of neutrals is a critical pillar for ensuring quality." The Commercial Division is most apt to maintain rosters of qualified ADR practitioners, especially in New York, Westchester, Nassau and Erie counties, said Weitz. Some Family Courts also maintain rosters, including New York City's, and often refer child custody and visitation disputes to mediation. Under Pfau's rule, the Unified Court System will set criteria for training programs. "It is not our intention to necessarily remove people who are currently serving on rosters if they are in need of some additional training," Weitz said Wednesday. "Our office will sponsor training throughout the near future for those interested." Nothing in the rules exempts nonattorneys from acting as mediators, as long as they do not function in the dual role of neutral. Baum said he knows of several excellent mediators who are not attorneys, though he said the vast majority are. In fact, Baum said he has pondered long and hard about the skills needed to effectively resolve disputes between others. "I think there is an interesting question: What makes a good mediator and whether that is something that comes from personality or character or years of experience, judgment, a certain tact, a sense of humor -- all the various personal skills that make for a good mediator," Baum said. "Some of it comes from life experience and not necessarily through a training course." Still, he added, "It definitely can't hurt to spend more time in training." Study
Shows Early Litigation Sheri Qualters A study of court settlements in personal injury lawsuits against businesses estimated companies could save an average total of $114,000 per claim or $670,000 for severe injuries by promptly settling cases instead of fighting them in court. The study, which was published this month in the Columbia Business Law Review, also projected $32,000 in savings from lower legal expenses, or about $211,000 for cases involving severe injuries. The study based the projections on how much it would cost businesses to make "early offers" to pay out-of-pocket medical expenses and wage losses of injured claimants. The quick settlements would reduce legal fees and "pain and suffering" damages. University of Virginia School of Law professor Jeffrey O'Connell and California State University-Northridge associate professor Patricia Born wrote the study, which analyzed court settlements of personal injury and defective product injury cases against companies between 1988 and 2004 in Texas and Florida. The study proposes an early offer system that would give businesses 180 days to offer claimants no-fault-like payments of medical expenses and wage losses not otherwise covered plus an additional 10 percent for attorney fees. Although claimants would not be compensated for pain and suffering, the study predicted a payment wait time of 2 1/2 years less than going to court. Under the model claimants could only turn down offers if the defendants' actions involved gross misconduct, which the study found only involves about 4 percent of business liability cases, said O'Connell. "Thus a crucial element of the tort system's deterrence mechanism is retained: Injured parties could still win suitably large monetary awards under the early offers model for both economic and non-economic damages in clear cases of aggravated error," O'Connell said. Our View:
Less Painful Split FloridaToday.com Akinder, gentler divorce? For many people who've been through an ugly split, the idea pushes the limits of reality. Anger, recriminations and revenge often become motivating factors when a marriage falls apart. The results can be emotionally crushing to children and spouses, and loss of needed financial assets to soaring legal costs. That's why even the possibility of ending unsalvageable unions without all that collateral damage should be encouraged. And it's why we're glad to see an approach already used in Canada, Europe and increasingly around the nation, is coming to the Space Coast. Its called collaborative divorce, and it brings together the parties' lawyers, neutral financial experts, mediators and mental-health specialists to address divorce-related problems on many fronts. Brevard County Judge Dean Moxley recently signed an order to encourage lawyers to recommend collaborative divorce where applicable, rather than battle out the breakup in the courts. Proponents say the process differs from mediation by reducing mediation's still-somewhat adversarial aspect. While Moxley's order isn't law, anyone concerned with reaching the least-painful-possible divorce should give it serious consideration. The benefits for couples who want to cooperate and are willing to fully disclose all assets could be substantial. For example, divorce in Brevard County typically takes two years and costs $10,000 to $20,000. Collaboration costs many thousands of dollars less. It also could accomplish in hours what might otherwise involve months of legal maneuvering and bring the situation to a close in as little as 30 days, says Rockledge-based mental health counselor Robin Siebold, a supporter of the process. Should the hoped-for agreement not work out, the couple still can go to court, she says. The hard sell could be to attorneys worried the trend might cut into their income. However, when attorneys see how it relieves them of the late-night calls and constant emotionally driven demands, some decide to handle these cases exclusively, Siebold says. Collaborative divorce is no cure-all. Spouses who believe their mate would hide assets, or can't be trusted to carry through on agreements, would be better off with a good lawyer in a courtroom. But in the rest of the cases, where spouses want to save money, avoid ugly attacks and protect children from turmoil, it's a smart solution. We commend Moxley for giving it his support and we encourage lawyers who are looking out for the good of families to take up the cause.
Mediators Help Parties Avoid Trial The three young women had once been roommates, but two were now suing the third, who allegedly left some obligations behind when she moved out. All three stood at the lectern in Small Claims Court, giving brief overviews of their plight to County Judge Patti Christensen. The two plaintiffs said the defendant left without paying all her bills. She also took some items that didn't belong to her, they claimed. All were eager to go to trial. Then they took the judge up on her recommendation to talk it all over first with one of the court's more valuable assets. A mediator. "Our mediators are all volunteers," Christensen said. "Some are former automobile dealers and business owners; others are retired military big-wigs. One is a lay-rabbi; another is a former teacher." Notably, none are former attorneys. "Attorneys get bogged down in the vagaries of the law," the judge said. Typically, Christensen said, mediators meet in private with the parties and ask each to explain their position. They don't take sides. The object of talking it all over with a mediator is to work out a settlement that is agreeable to both sides without resorting to a trial. "Because cases in Small Claims Court involve disputes of $5,000 or less, mediation is an economical way to resolve a dispute," said Christensen. "Litigants often can work out a solution by merely telling the mediator what they think they can prove and what their witnesses will say." If the parties are far apart in their claims and don't want to sit down with a mediator, Christensen will schedule a trial date. Many of the cases involve disputes about rent and security deposits, the judge said. Others are over substandard work or unpaid bills. "The more unusual cases have included claims for a bad hairdo, determining custody of pet birds and whether someone's dog killed chickens," said Christensen. For every four cases that are resolved at trial, mediators resolve one for the judge, she said. Twenty mediators, trained and certified by the Florida Supreme Court, come to the courthouse twice a month to help Christensen and County Judge Charles Tinlin. Their efforts save county taxpayers an average of $55,000 a year, said Christensen. "On top of that," she added, "the mediators donate their time, so neither the county nor the litigants have to pay for their services." Mediator Martin Cohen caught a case on Tuesday between a woman and a contractor who was supposed to renovate her home. The workers walked off the job without completing it, said the woman, who wanted a $5,000 refund. Before he retired the first time, Cohen was a director at Union Carbide, a Fortune 100 company, in Danbury, Conn. He later opened his own small firm, an engineering services business, in St. Augustine. He started visiting the area in 1983 and became a full-time resident in 1993. He lives in St. Augustine Beach and has been a mediator for about 3 1/2 years. "I'm interested in working with people," said Cohen. "It's really a challenge to get people to put aside their differences and come to an agreement." Mediator John Alberti has been living in Ponte Vedra since 1993. He had been an executive with a car rental company and an automobile dealership in Portland, Maine. Alberti has been a mediator for about eight years. "I like the legal environment," he said. "I like helping people resolve their disputes. "And it's an opportunity to give back to the community." The local mediation program has been "very successful and beneficial to the county," Christensen said. She noted that Oct. 15-22 is National Mediation Week and extended her appreciation to Paul Greenfield, "who is retiring after many years of outstanding service." "We have very high-quality folks who are helping us out," the judge said. Anyone interested in becoming a mediator should call Judy Carroll, Mediation Supervisor at the Daytona Beach office, for more information. The phone number is (386) 239-6504.
Male-Female NY Duo By Peter C. Beller The shortest divorce
agreement that Gae Polisner and Christopher S. Jay mediated took
just two weeks, start to finish.
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