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Mediation mandate intended to unclog big case backlog

Rochester Business Journal
June 14, 2013

In a major procedural innovation that began last July, most civil litigants in U.S. District Court in Rochester are required to try mediation first.
The mediation mandate is an expansion of an alternative dispute resolution program begun in the Western District of New York's Buffalo division six years earlier.
Largely the brainchild of the district's chief judge, William Skretney, the program was created in hope of reducing a stubborn case backlog that has clogged the district's courts for two decades, keeping many civil disputes on a back burner for years.
Shortage of funds and Congress' molasses-like rate of approving judicial appointments have increasingly slowed proceedings in most if not all of the country's 94 federal district courts.
The Western District of New York, whose Buffalo and Rochester divisions include 17 counties, is among those most deeply affected. It has the nation's sixth-highest caseload and seventh-highest number of cases per judge, Skretney told the Rochester Business Journal in an interview last April.
While the Western District judges "do a pretty good job" of keeping up, he said, a backlog of hundreds of cases persists. Because the Constitution guarantees criminal defendants a speedy trial, commercial disputes, contract cases, intellectual property cases and other complicated civil matters go to the back of the line.
"That's not fair, but it's the way it is," says the mediation program's administrator, Barry Radlin, who hopes to head off enough civil cases to bring the backlog into line.
Edward Hourihan, a litigator in the Pittsford office of Bond, Schoeneck & King PLLC, says that if only 50 percent of the mandated mediation cases could be settled, that would make a tremendous difference.
In complex civil cases, he says, months and sometimes years can elapse while attorneys joust over procedural issues and discovery without a judge or jury hearing any substantive issues.
Sometimes summary judgment rulings cut cases short, he concedes. But more often, civil cases are settled without a trial. Unfortunately for clients, that frequently happens after lawyers rack up many billable hours in pretrial skirmishing.
Theodore Eisenberg, a professor at Cornell University Law School, and Charlotte Lanvers, a fellow with the Disability Rights Education & Defense Fund Inc., co-authored a 2009 Journal of Empirical Legal Studies paper on civil-litigation settlement rates.
Analyzing two federal court districts' civil filings from mid-2001 to mid-2002, they found an aggregate 66.9 percent settlement rate. One district's rate exceeded 76 percent, and more than half of civil cases were settled in the other.

Making progress
In Buffalo, the mediation program has worked well and 76 percent of the cases that have gone into mandatory mediation have been settled, Radlin says.
A longtime Buffalo-based commercial litigator who helped develop the mediation program, he sees the Rochester effort as too new for a definitive evaluation of its effectiveness.
Still, he adds, "I don't see any reason why it wouldn't work at least as well in Rochester as it has in Buffalo."
The Buffalo program began in 2005 when Skretney, who then had not yet been named chief judge, convened a committee to develop a mediation effort. After studying alternative dispute resolution programs around the country, the committee settled on a model that Radlin, who served on the body, calls "one of the most aggressive and innovative in the country."
Its key elements:
Litigants of most newly filed civil cases must undergo at least two hours of mediation before taking any other court action;

Only mediators invited by the court to serve on a panel are eligible to conduct sessions; and

Mediators are paid $150 an hour but pay their own training costs.
Other federal and state court mediation programs allow participation to be voluntary and to start later in the process, Radlin says. In some, mediators are volunteers and might not be uniformly trained. To properly launch the Buffalo and Rochester program, he says, the Western District secured funding to train and pay two dozen local lawyers in each division.
Rochester mediator Cindy Lapoff of Chamberlain D'Amanda Oppenheimer & Greenfield LLP had previously trained as a mediator but still says the Western District's training program is "first-class" and highly worthwhile.
In the local program, ongoing cases filed before mediation was mandated are not automatically put into mediation, but the presiding judge can order it. Civil litigation involving prisoners, which accounts for a hefty slice of the federal courts' civil docket, is also excluded.
"That doesn't mean that no prisoner cases are mediated," however, says Radlin, who personally studies the often lengthy, self-filed and handwritten complaints prisoners file, evaluating which might be possible to settle.
Not every prisoner complaint is suitable for mediation, Radlin says. The possibility that a settlement can result in damages paid to a convict by taxpayers is not palatable to many. But any cases that can be settled help to unclog the districts' overburdened courts, an outcome whose virtues prosecutors and judges can appreciate.

Changing course
The Buffalo program was first rolled out in Skretney's courtroom in 2006 and then phased into other Buffalo judges' courtrooms over the next few years. Radlin started implementing the Rochester program in 2011. He hopes to expand it, training a second 24-lawyer group of mediators.
Employment attorney Nelson Thomas of Thomas and Solomon LLP, a member of the first class of Rochester federal court mediators, has done four mediations so far.
Mediation is "a wonderful process, superior to a court situation in a lot of ways," he says. "It has a lot of advantages."
In addition to offering a possibility of sidestepping costly and lengthy pretrial courtroom maneuvering, mediation offers litigants more flexibility, Thomas says. Strict adherence to the law might allow only resolutions that satisfy neither party. But in mediation, opposing sides can have more room to find terms amenable to both.
Lapoff, also an employment lawyer, concurs. Even sophisticated litigants can have unrealistic expectations for what might be accomplished in court. Convinced that it will result in victory, what many litigants want more than anything else, including money, she says, is a chance to tell their story in court.
"Going in," she says, "everybody thinks they have the greatest case in the world."
But as cases progress through weeks, months and sometimes years of discovery and other pretrial jousting, the chance to tell what litigants imagine will be their winning story fades. Plaintiffs who initially thought they would pursue their case against any odds can be more inclined to try mediation.
"Certain litigants are emotionally tied to their cases," says Paul Nunes, a litigator with Underberg & Kessler LLP and a mediator in the Rochester federal court. Those people can require "extra personal attention" and a stage to voice their concerns. Mediation can provide such a forum; court proceedings are not likely to.
In the mediations they have presided over so far, Nunes, Thomas and Lapoff report varying rates of success.
Of the four cases Thomas has mediated, one, an ongoing dispute roughly three years old, did not settle. Two did settle, and a fourth remains open.
Nunes, a commercial and intellectual property litigator, has overseen six mediations. Two are still in progress. Of his completed cases, three settled. The one that did not was, in Nunes' telling, "a disaster."
Currently involved in three mediations, Lapoff declines to predict the outcome of two. She is virtually certain that the third will not settle, but only because the plaintiff is looking for a constitutional ruling.
Hourihan, whose only involvement in the program is as an advocate, wonders whether its chances of success would be even better if mediations were scheduled after discovery. Would litigants be more inclined to settle, he asks, after they get a clearer understanding of what court proceedings might be like in the case?
All three mediators say they regard their participation in the program as more a public service than a job. The program's $195-an-hour rate is perhaps $100 lower than what is usually charged by the attorneys chosen to do the court-mandated sessions, Thomas says.
"I see it as an honor to have been asked," Nunes says.
Radlin thinks the program presages the future course of much civil litigation.
"Ten or 20 years ago, mediation was seen as litigation's stepchild," he says. "Now, it is more like a full-fledged sibling."

6/14/13 (c) 2013 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email

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