What is Mediation?

Mediation is a supervised resolution modality presided over by a qualified, certified, and neutral mediator who can analyze issues, question perceptions, suggest alternatives, and conduct private caucuses to stimulate negotiations between opposing sides with the goal of coming to closure.

Mediation is also a litigation management tool that has proven effective in securing resolution on an amicable basis without the expense and uncertainty of trial.

The SDNY Mediation Program is cost-free for the parties; the mediators do not charge for their services.

The mediation conference is conducted in a conference room at the United States Courthouse. Alternatively, it may be possible to make arrangements for private rooms or offices for sessions after the first session.

The mediation process itself is intended to be informal in nature, with the mediator structuring the actual ebb and flow of the process. Unlike arbitration which results in an award and possible judgment, the outcome of a successful mediation conference is an agreement consented to by the parties.

Although the mediation process is inherently flexible, as a rule, the following guidelines apply to the conduct of the mediator:

The mediator will:

• Be impartial.
• Suggest alternatives.
• Hold private meetings or caucuses with the attorneys, parties, corporate representatives, and claims professionals.
• Assist in clearly identifying the issues.
• Privately debate each side's logical basis and perceptions.
• Respect confidential and/or privileged information.
• Allow the parties to negotiate.
• Guide the parties and counsel in finalizing an agreement.

The mediator will not:

• Act as a judge or arbitrator.
• Rule upon questions of fact or law.
• Render a decision or award.
• Hear testimony.
• Disclose the parties ' settlement positions or settlement agreement to the presiding judge without the consent of all parties.

Trial counsel and the parties, including corporate representatives and necessary claims professionals, are required to appear and participate in the mediation process and must attend with complete authority to compromise and settle the action. Participants are required to remain and participate in the mediation until a resolution is reached, subject to being excused by the mediator, the conference is adjourned to a later date, or an impasse is declared. Failing resolution, the parties will continue litigation in accordance with the Court's schedule.

Who Are The Mediators?

Mediation conferences are conducted by Court appointed mediators who are certified by the Chief Judge or the Judicial Officer appointed by the Chief Judge, pursuant to Local Rule 83.9. Mediators must have at least five years experience as attorneys and have completed Court sponsored mediation training. If parties request, the appointed mediator shall have expertise in the area of law involved in the case.

What Are The Advantages Of Mediation?

Advantages for the Parties:

• The mediator is provided by the Court without cost to the parties.
• Successful mediation reduces the risk of an unfavorable outcome at trial.
• Avoids the expense of additional pretrial discovery, trial preparation and a trial.
• Allows the party to bargain through counsel and to structure an agreement that contains important elements, in exchange for other elements which are less important. The court or a jury would make a decision without knowledge of or regard for these key elements.
• Each side gets to see the other's best offer, and the parties can decide to take it or litigate.
• Provides an opportunity to explore a range of solutions that may be outside the scope of the litigation.

Advantages for the Attorneys:

• Negotiated agreements reduce the risk of an unfavorable outcome at trial.
• The mediator, as a disinterested third party, can effectively facilitate negotiation in good faith.
• Accomplishes the goals of the client without a disproportionate expenditure of attorney's fees.
• Allows for more effective use of the attorney's time.
• Client satisfaction.
• Prevents negotiation distraction during trial process.

Advantages for the Court:

• Resolves the case without the further expenditure of judicial resources.
• If the dispute is resolved early and not on the eve of trial, it allows the Court to schedule other cases in the allotted time.
• Voluntary settlements usually do not require post-trial enforcement proceedings.

What Does A Mediator Report To The Court?

Within five days of the conclusion of the mediation, the mediator will file a mediation report indicating the case was settled; the mediation was continued with the consent of the parties; or the mediator declared an impasse.