CDAC Rule Proposal to Loosen Requirements To Become A Neutral Evaluator Still Pending

On December 4, 2020, the Administrative Board of the Courts sought public comment on the Commercial Division Advisory Council’s (“CDAC”) proposed amendment to Commercial Division Rule 3(a), 22 NYCRR § 202.70(g).[1] The current language of Rule 3 permits the court to direct, or for counsel to seek, the appointment of an uncompensated mediator for the purpose of mediating a resolution of all or some issues presented in the litigation.[2]  The CDAC’s Rule 3(a) proposal would “permit the use of neutral evaluation as an [alternative dispute resolution (“ADR”)] mechanism and to allow for the inclusion of neutral evaluators in rosters of court-approved neutrals.”[3]  Currently, under Part 146 of the Rules of the Chief Administrative Judge, “neutral evaluation” is “a confidential, non-binding process in which a neutral third party (the neutral evaluator) with expertise in the subject matter relating to the dispute provides an assessment of likely court outcomes of a case or an issue in an effort to help parties reach a settlement.”[4]  The Chief Administrative Judge’s rules already set forth the training prerequisites to become a neutral evaluator.[5]

The CDAC proposal is to lower the amount of training required to be an approved neutral evaluator.  The proposed revision to Rule 3(a) is as follows:

At any stage of the matter, the court may direct or counsel may seek the appointment of an uncompensated mediator or neutral evaluator for the purpose of helping to achieve a resolution of all or some of the issues presented in the litigation. Counsel are encouraged to work together to select a mediator or neutral evaluator that is mutually acceptable and may wish to consult any list of approved neutrals in the county where the case is pending.  Additionally, counsel for all parties may stipulate to having the case determined by a summary jury trial pursuant to any applicable local rules or, in the absence of a controlling local rule, with permission of the court.[6]

The CDAC explained that, given the New York Court’s initiatives to encourage ADR and the effects on litigation resulting from the COVID-19 pandemic, this rule proposal would allow attorneys—with just as much practical experience as current mediators—to become a neutral evaluator without being required to undergo the more expansive mediation training.[7] 

Next, the CDAC explained that this requirement may also increase diversity of court-approved neutrals.[8]  CDAC explained that they were concerned that maintaining a 44-hour requirement may disproportionally effect women and minorities decision to become a court appointed neutral.[9]  As an American Bar Association (“ABA”) report on ADR noted, diverse attorneys may not choose to undergo the training to become a neutral, given that they are underrepresented in private practice and often seeking to build a different economically viable practice.[10]

Finally, the CDAC sees the expansion of the neutral evaluator roster as one solution to assist judges’ efforts to encourage ADR.[11]  Even with the expanded list of potential neutrals, the judges and parties would still be able to differentiate among individuals that are neutral evaluators and those that are mediators, and would be able to decide the appropriate skill set necessary to assist in resolving the issues before the court.[12] 

For these reasons, the CDAC proposed that neutral evaluators should only have to undergo six hours of training and have five years of training as required under Part 146, before being added to the roster of neutrals.  Comments on this proposal were due January 29, 2021.[13]  On January 26, 2021, the Commercial and Federal Litigation Section of the New York State Bar Association submitted comments in favor of adopting the Rule 3(a) amendment for same reasons articulated by the CDAC.[14]  To date there is no decision on the Rule 3(a) proposal.

With respect to ADR generally, the New York court system has endorsed ADR as a way to increase efficiency in the court system.  Chief Judge Janet DiFiore has made it a New York State Court initiative to encourage ADR programs.  As she explained in her February 2019 State of our Judiciary, “one of the main ways to streamline litigation and make our courts more affordable is to increase opportunities for settlement through [ADR] options such as mediation and arbitration.”[15] This pro-ADR initiative continues to be a priority for the New York Court system, and proved particularly helpful during the pandemic.[16] Moreover, many of the New York County Commercial Division justices encourage parties to use mediation.  For example, Justice Borrok’s individual rules explain that “the parties are encouraged to identify as early as possible any case where ADR would be appropriate.  In addition, and if at any point, the parties decide that they would benefit from the Commercial Division ADR program, they should write a joint letter to the Court asking to be referred to ADR.  In that letter, they should state whether they prefer discovery to be stayed or continued during the mediation process.”[17] Likewise, Justice Cohen’s and Justice Reed’s individual part rules require the parties to report whether they have attempted the ADR process offered by the Court during a compliance conference.[18] 

Accepting the CDAC’s proposal will no doubt help facilitate access to the ADR programs already encouraged by the New York Court system and Commercial Division justices.  This is especially true as litigants determine how to advance their cases in the wake of the COVID-19 pandemic.  And, if it has the added benefit of creating a more diverse pool of neutrals, as the CDAC suggests, this is something that will benefit the profession as a whole.