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New Commercial Division ADR Rule

On October 11, 2017, Chief Administrative Judge Lawrence Marks amended Rules 10 and 11 of Section 202.70(g) (“Rules of Practice for the Commercial Division”) with respect to Alternative Dispute Resolution (“ADR”).

Rule 10 now requires counsel to file a certification relating to ADR at the preliminary conference and each subsequent compliance or status conference. The amended rule requires counsel for each party to certify, "that counsel has discussed with the party the availability of [ADR] mechanisms provided by the Commercial Division and/or private ADR providers, and stating whether the party is presently willing to pursue mediation at some point during the litigation.”

Rule 11 states that where appropriate, a preliminary conference order will contain provisions for the early disposition of a case, including directions for submission to the ADR program. The amended rule now states that directions for submission to the ADR program are provided in the preliminary conference order, “including, in all cases in which the parties certify their willingness to pursue mediation pursuant to Rule 10, provision of a specific date by which a mediator shall be identified by the parties for assistance with resolution of the action.”

These amendments focus on providing clients with sufficient information related to mediation and ADR, and setting a proper time frame for identifying a mediator. Both amendments are seen as ways to increase and improve the usage of mediation in the Commercial Division.

The amendments were first proposed by the Commercial Division Advisory Council. After public comment, they were adopted by the Unified Court System's Administrative Board. These amended rules are set to take effect January 1, 2018.

By George S. Soussou and Stephen P. Younger