In May 2019, upon recommendation by an Advisory Committee on Alternative Dispute Resolution (“ADR”), Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks announced the implementation of “presumptive ADR”.
The goal of the program is to automatically refer the vast majority of civil cases, including but not limited to matrimonial actions, to mediation (or another form of ADR).
Recently, pilot programs for presumptive ADR have been implemented in counties across New York State in certain matrimonial cases. Under the proposed rules of the pilot programs, divorcing couples would be required to participate in an ADR process, such as mediation, before being allowed to proceed to trial. For example, Putnam County in the Ninth Judicial District requires a matrimonial case to utilize the presumptive ADR process where (i) the spouses are W-2 wage earners and (ii) the case does not involve allegations of domestic violence or where temporary or permanent Orders of Protection have been issued.
Another example is New York County Supreme Court, which has implemented a presumptive matrimonial mediation pilot program. The Manhattan Court has designated two of its matrimonial court parts as “presumptive matrimonial mediation parts.” In each part, half of all new cases scheduled for a preliminary conference are automatically referred to mediation. The assignment is based on whether the case bears an odd or even index number.
Additionally, Monroe, Broome, and Erie County implemented presumptive ADR in their Family Courts in 2020. Chief Judge Janet DiFiore highlighted the particular success of those counties’ programs in her “State of Our Judiciary 2021” Address, announcing that they achieved a 75% settlement rate for cases referred to mediation.
While presumptive ADR has not yet been fully implemented throughout New York State, it is worth analyzing the potential impact of presumptive ADR on divorce cases as its rollout unfolds.
One potential benefit of presumptive ADR is that it could help couples reach a settlement more quickly and with less expense than going through a trial. Mediation, in particular, can be a highly effective way for couples to work out their differences and come to an agreement on issues such as property division, child custody, and spousal support.
However, there are also potential downsides to the proposal. For one thing, not all couples may be well-suited to mediation/ADR. If there is a history of domestic violence or abuse in the relationship, for example, mediation may not be appropriate. The courts seem particularly sensitive to this potential barrier to mediation/ADR, as early presumptive ADR programs automatically disqualify such cases from the process. Additionally, if one party is unwilling to participate in mediation/ADR, it could create delays and complications in the divorce process.
Another potential issue is the availability of qualified mediators. While there are many highly skilled mediators in New York State, the demand for their services could increase significantly under the presumptive ADR program. This could result in longer wait times and potentially higher fees for those seeking mediation. Divorce mediation is often touted as a lower-cost option compared to traditional courtroom litigation, so particular attention should be paid here to see how the courts keep costs relatively low.
It will also be interesting to see how the pilot program works in practice. While the presumptive ADR proposal is based on successful programs in other states, it remains to be seen whether it will have the same positive impact in New York.
Presumptive ADR has the potential to significantly impact divorce cases throughout New York State. While there are proven benefits to using mediation/ADR, there are also potential downsides and practical considerations that need to be addressed.
Michael Liptrot is senior counsel in Tully Rinckey PLLC’s New York City office, where he focuses his practice on family and matrimonial law. For close to a decade, Michael has practiced family law across New York City, including the five boroughs, the lower Hudson Valley area, and New Jersey. Throughout his time practicing, Michael has gained a vast amount of experience in family and matrimonial law, with specific experience in divorce, custody, child support, family offense, neglect/abuse, guardianship, and SIJS (Special Immigrant Juvenile Status) matters. He can be reached at info@tullylegal.com or at (888)-529-4543.
