Important amendments to Rules 10 and 11 of the Rules of Practice of the Commercial Division of the New York Supreme Court go into effect on January 1, 2018. Newly amended Rule 10 will require counsel to file with the Court at the preliminary conference, and at each subsequent status conference, a statement certifying that they have discussed the option of mediation with their clients, and stating whether the client is presently willing to pursue mediation “at some point in the litigation.” If there is agreement to pursue mediation, Rule 11 will require the parties to propose a specific date by which the mediator is to be selected.
The purpose of these amendments is to ensure the parties understand the availability of ADR as soon as the case is commenced, and before sizeable legal fees accrue and litigation positions harden. A party is sometimes reluctant to raise mediation for fear its adversary would conclude that it lacks confidence in its position or is not steadfast in its intent to litigate the case to conclusion. The new amendments should ameliorate any such concerns.
These new amendments are similar in approach to the rules adopted by various Federal Courts throughout the country. (See, e.g., S.D.N.Y. Local Rule 83.9(d) mandating that mediation be addressed at the initial case management conference).
The Administrative Order setting forth these new amendments can be found at
Joe DiBenedetto recently retired from Winston & Strawn LLP, after spending 46 years in its Manhattan office as a capital partner specializing in commercial litigation. He formed JDB Mediation LLC to further develop his mediation and arbitration practice, which is centered in Manhattan and its surrounding counties (including Westchester, Nassau, and Suffolk). Joe DiBenedetto’s experience, training, and other credentials are more fully described at www.JDBMediation.com