Notice to the Bar: New Settlement Opportunities Under S.D. Mediation Plan
On Dec. 20, 2013, the Southern District of New York issued new procedures for its Mediation Program to accompany recent amendments to Local Civil Rule 83.9, the rule concerning the Southern District's alternative dispute resolution. These developments (as well as the mediation program's recently issued annual report) provide an opportune time to offer the bar an overview of the program.
Following the enactment of the Civil Justice Reform Act of 1990, the Board of Judges for the Southern District authorized an advisory group to draft a proposal for the court's ADR program. This group finalized a plan in 1991, and mediation was adopted as the court's ADR program. After a trial period, the program became fully operational at the end of 1994.
Under the revised Local Rule, all civil cases other than social security, habeas corpus and tax are eligible for mediation. The court may also direct that certain specified categories of cases be automatically submitted to the mediation program.
To that end, since 2011 the court has automatically referred for mediation employment discrimination cases (except for cases under the Fair Labor Standards Act and pro se cases) and counseled cases against the City of New York and/or the New York City Police Department (or its employees) alleging the use of excessive force, false arrest, or malicious prosecution in violation of 42 U.S.C. §1983.
Parties are free to request that their case be referred to mediation no matter what kind of claim is involved. In 2013, 911 cases were referred to the program, either through the automatic referral process or by referral of a specific case from the assigned judge.
Local Rule 83.9, which applies to the Southern District only, was amended in 2013 to allow for more flexible administration of the mediation program. Many of the procedures previously covered in the Rule have been modified and relocated in a set of "Mediation Program Procedures" in order to make it easier to change them when needed rather than invoke the court's formal rule amendment process. The Rule now simply provides a definition of mediation (Rule 83.9(a)), an explanation of the administration of the program (Rule 83.9(b)), the requirement that parties consider mediation (Rule 83.9(c)), and describes how cases enter the program (Rule 83.9(d)).
The procedures include detailed information about the following topics: (1) confidentiality; (2) assignment and disqualification of the mediator; (3) mediation scheduling; (4) written submissions required for the mediator; (5) attendance at mediation sessions; (6) location of mediation sessions; (7) mediation forms and reporting; (8) post-mediation surveys; (9) application process and service as a mediator; and (10) mediator's code of conduct, complaints and mediator immunity.
While a discussion of these topics is beyond the scope of this letter, one significant change worth highlighting is that mediations are no longer required to take place at the courthouse, but instead may occur at the courthouse, at the mediator's office or at any other location agreed to by the mediator and the parties.
The program is getting results. The 911 cases referred for mediation in 2013 were handled by a group of almost 400 mediators, 418 were from the Section 1983 Plan with a settlement rate of 67 percent; 347 were automatically referred employment cases with a settlement rate of 43 percent; 33 were pro se employment cases with a settlement rate of 68 percent, and 113 were general civil cases referred by individual judges with a settlement rate of 60 percent.
The Southern District Mediation Program provides another option to litigants who are interested in making efforts to settle their cases, often at the early stages of litigation. As an alternative to magistrate judge-led settlement conferences or private mediations (sometimes at significant cost), the program offers a free and efficient option with trained mediators devoting substantial time and effort to resolving cases. It is a program that we hope members of the bar will consider for at least some of their cases.