New York Announces Statewide “Presumptive” Alternative Dispute Resolution Program
On May 14, 2019, the New York State Unified Court System announced that it will begin rollout and implementation of a “presumptive” alternative dispute resolution (“ADR”) program. Under the new program, parties in civil cases will be referred to either mediation or some other form of ADR as an initial step for most lawsuits filed in New York State courts. The “presumptive” ADR program will apply to a broad range of civil cases, including commercial disputes.
The new program marks a major change in New York State’s approach to ADR. While ADR has greatly expanded in recent years, most forms of ADR, like mediation, are dependent on the litigants opting in or an individual judge ordering participation.
In its press release, the Unified Court System announced that Deputy Chief Administrative Judges George Silver and Michael Coccoma will work with other administrative and trial court judges to expand the number and scope of court-sponsored ADR programs across courthouses in New York.
Implementation and rollout of the program is expected to begin in September. According to the press release, the Unified Court System plans to develop uniform rules that will authorize, endorse, and provide a framework to expand court-sponsored mediation programs.
While details are currently limited, this program raises important questions for commercial division litigants, including what cases will be subject to “presumptive” ADR, whether cases with pending motions to dismiss would be excluded from inclusion in the program, and where and in what form will that ADR take.
ADR is not new to the commercial division. In fact, from July 2014 through February 2016, the New York County commercial division adopted a pilot program, which was later suspended, where every fifth Commercial Division case was referred to mediation. The New York County commercial division also already has a well-regarded roster of mediators. Moreover, as we have previously covered, effective January 1, 2018, the commercial division rules have provided 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. In addition, the 2018 rule changes provided that preliminary conference orders must include “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.” Nevertheless, a statewide “presumptive” ADR program is a major development for litigants in the commercial division.
 New York State Court is unique in that a motion to dismiss operates as an automatic stay of discovery, CPLR § 3214(b). That procedural mechanism raises questions about how “presumptive” ADR would apply in cases where defendants immediately move to dismiss.