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ALTERNATIVE DISPUTE RESOLUTION PLAN FOR THE

FIFTH JUDICIAL DISTRICT

Hon. James P. Murphy, J.S.C. Administrative Judge, Fifth Judicial District

Rev. 11.01.2019

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TABLE OF CONTENTS I. PREFACE & UCS STATEMENT OF POLICY 3 II. GENERAL PRINCIPALS 3

A. INTRODUCTION 3 B. EXCLUSIONS 4 C. TERMS & DEFINITIONS 4 D. ADR PROCESS DEFINITIONS 5 E. IMMUNITY 6 F. STANDARDS OF CONDUCT 6 G. CONFIDENTIALITY 7 H. NO STAY OF DISCOVERY 7 I. OVERSIGHT AND QUALITY ASSURANCE 7 J. PROVISION FOR LANGUAGE ACCESS 8 K. COUNSEL’S OBLIGATION TO DISCUSS ADR 8 L. CONFLICTS OF INTEREST 8 M. FIFTH JUDICIAL DISTRICT WEBSITE 8

III. SUPREME COURT CIVIL & COMMERCIAL ADR PLAN 9 IV. SUPREME COURT FORECLOSURE ADR PLAN 12 V. SUPREME COURT MATRIMONIAL ADR PLAN 13 VI. FAMILY COURT ADR PLAN 17 VII. SURROGATE’S COURT ADR PLAN 23 VIII. CITY COURT ADR PLAN 25 IX. PERMANENCY MEDIATION PROGRAM (Appendix "A”) 28 X. ORGANIZATIONAL CHARTS 35 XI. The MODEL STANDARDS of CONDUCT for MEDIATORS,

August 2005. (See www.mediate.com/articles/model_standards_of_conflict.cfm)

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I. PREFACE & UCS STATEMENT OF POLICY

A. PREFACE.

“The time is right to provide litigants and lawyers with a broader range of options to resolve disputes without high monetary and emotional costs of conventional litigation. We consider this vision of ADR to be an integral part of our Excellence Initiative…”

Hon. Janet DiFiore, Chief Judge, 2019 State of Our Judiciary Address.

B. UCS STATEMENT OF POLICY.

It is the policy of the Unified Court System to encourage the resolution of civil legal disputes by methods including mediation, arbitration, neutral evaluation, in-court settlement conferences, and summary jury trials. All civil actions or proceedings heard in the Supreme Court, Court of Claims, County Court, Family Court, Surrogate’s Court, District Court, City Court, and New York City Civil Court shall be presumptively eligible for referral to an alternative dispute resolution process unless otherwise excluded pursuant to this Plan. Courts may refer parties to an ADR process at any time after an action has been commenced and are encouraged to do so at the earliest appropriate opportunity.

II. GENERAL PRINCIPALS.

A. INTRODUCTION. Although courts may refer parties to an appropriate ADR method at any time after an action has been commenced, it is the policy in the Fifth Judicial District to encourage and endeavor to do so at the earliest appropriate opportunity. It is well recognized that early ADR results in a high rate of settlement. In preparation for drafting the Fifth District’s ADR Plan (the “Plan”), impacted Stakeholders were first identified. Stakeholders included members of the judiciary, non-judicial court clerks and law clerks, private practice attorneys, members of local bar association, members of the plaintiffs and defense bar, attorneys for the child, members of local community dispute resolution centers, and members of the New York State Office of Alternative Dispute Resolution. These Stakeholders attended an ADR Summit on May 28 and 29, 2019, in Clayton, New York, and discussed and recommended appropriate presumptive ADR procedures for each court within the Fifth Judicial District. Based upon those recommendations, administrative staff prepared separate plans for each court and, thereafter, circulated the draft plans to the respective judges and clerks in all the courts of the Fifth District for their review and comment. This process culminated in a final draft Plan for each court, which was then submitted to Administrative Judge, Lawrence Marks and Deputy Chief Administrative Judge, Vito Caruso for their review and comment. Upon receipt of their comments, the Plan was reviewed and revised accordingly. This collaborative effort has resulted in this, the Fifth Judicial District’s ADR Plan.

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The Plan takes the fullest advantage of a wide range of existing resources, including volunteer mediators and neutrals on both State and Federal court rosters, judges, non-judicial staff, judicial hearing officers, court attorney referees and Community Dispute Resolution Centers (“CDRCs”). Recognizing that each court within the District is unique, the Fifth Judicial District will monitor the implementation of each Plan utilizing FileMaker, UCMS and any other OCA approved software and develop local protocols, guidelines, forms and best practices to facilitate our common goal of introducing ADR to all civil actions as early, as effectively and as often as is appropriate.

B. EXCLUSIONS.

Any matter or proceeding may be excluded from ADR by the Court upon determination that there are circumstances in which (1) participation could jeopardize a person’s health or safety; (2) a party may be a victim of physical, emotional or other abuse by another party; (3) a substantial power imbalance exists between the parties; (4) there are allegations of child abuse, and (5) any other occasion when the Court for good cause shown, concludes that ADR would be imprudent.

C. TERMS & DEFINITIONS. 1. Alternative Dispute Resolution (ADR). ADR refers to a variety of processes that

help to resolve a conflict, dispute or claim without a trial. The two most common forms of ADR are arbitration, which is generally binding, and mediation, which is by definition non-binding. The underlying precept of ADR is that there is an appropriate dispute resolution option for each case, so that litigation need not be the default process for parties in all cases.

2. ADR Coordinator. A person assigned by the Administrative Judge in the Fifth

District to oversee implementation of the Plan, program development and administration of ADR programs within

the six (6) counties of the Fifth Judicial District. 3. ADR Neutral. An arbitrator, mediator or other individual who conducts an ADR

process, who does not have a pecuniary or any other interest in the outcome of a dispute in question; whose services the parties to the ADR process agree to utilize to assist their efforts to negotiate a resolution of their dispute, to change the quality of their conflict interaction or to make whatever progress they choose.

4. CDRC Neutral. Community Dispute Resolution Center volunteers or staff employed by or associated with a local non-profit community dispute resolution center that partners with the New York State Unified Court System that provides mediation, arbitration or other dispute resolution options as an alternative to court. 5. Private Neutral. A private individual selected by the parties to provide ADR services, typically for a fee.

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6. JHO. Judicial Hearing Officer. 7. Non-Judicial Court Staff. Any court staff who is not a judge. 8. Roster Neutral. A trained non-court staff neutral who is selected from a list of qualified neutrals approved by the court to provide ADR services.

D. ADR PROCESS DEFINITIONS.

1. Arbitration. In short, a neutral hears arguments, weighs evidence, and issues an award (decision). Arbitration is a process where disputing parties agree that one or several individuals --- the arbitrators --- can make a decision about the dispute after receiving evidence and hearing arguments. Arbitration is different from mediation because the arbitrator has the authority to make a decision about the dispute. The process may be similar to a trial in that the parties make opening statements and present evidence to the arbitrator; however, it is usually less formal and is often faster. Arbitration may be binding or non-binding depending on the agreement between the parties or any applicable law in this area. In binding arbitration, parties agree to accept the arbitrator’s decision as final. In nonbinding arbitration, the parties may request a trial if they don’t accept the arbitrator’s decision. Arbitration is subject to CPLR Article 75.

2. Mediation. Mediation refers to a confidential dispute resolution process in which a neutral third party --- the mediator -- helps parties identify issues, clarify perceptions and explore options for a mutually acceptable outcome. The mediator does not decide the case but helps the parties to resolve the dispute themselves. Mediation seeks to ensure that the parties arrive at a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Attorneys are strongly encouraged to participate in mediation, and in some contexts, may be required to participate. Mediation may be inappropriate if a party has a significant advantage in power or control over the other or the safety of a party is an issue. (See “EXCLUSIONS” at “II (B)” above)

3. Presumptive Mediation. In a presumptive mediation referral model, parties are referred to mediation at some point in the court process, preferably early, before costs rise and positions harden. Referrals are made to mediation based on predetermined case characteristics, rather than on a case-by-case basis, wherever possible.

4. Neutral Evaluation. Neutral evaluation is an ADR process that may take place soon after a case has been filed in court. If this process occurs early, it may be referred to as Early Neutral Evaluation. Regardless, a court may refer – or the parties may otherwise agree – at some point in the litigation process to refer the case to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute. The parties either submit written comments or meet in person with the expert. The expert identifies each side’s strengths and weaknesses and provides an

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evaluation of the likely outcome of a trial. This evaluation can assist the parties in assessing their case and may propel them towards a settlement. Often, the expert’s opinion may be of great significance to the parties as it may serve to confirm or contradict the assessment of the case by a party’s attorney.

5. Settlement Conference. A settlement conference is an important case management tool. Settlement conferences are often hosted by judges or court staff neutrals. Settlement conferences can be similar to mediation in that a third-party neutral assists the parties in exploring settlement options. Settlement conferences differ from mediation in that settlement conferences are not confidential, they are usually shorter, typically focus on the attorneys and their arguments, and have fewer opportunities for direct party participation or for consideration of non-legal interests that may be driving the conflict.

6. Special Master. A Special Master is a neutral appointed by the court to carry out

some sort of action on its behalf. This may include overseeing discovery issues, conferencing cases, or overseeing post-judgment activity.

7. Restorative Justice. Restorative Justice refers to a process meant to address an

incident of harm, or other dispute, in which stakeholders collectively identifies and addresses impact, needs of obligations, and create an action plan to move forward.

8. Summary Jury Trial. A summary jury trial is a one-day trial in which attorneys for each party present a shortened version of the case in a real courtroom before a jury. It is similar to arbitration except that a jury decides factual issues and renders a verdict as a jury would in a traditional trial. The trial may be either non-binding or binding, depending on the agreement of the parties and order of the court. Damages can be floored and capped on a high/low basis by agreement of counsel. The verdict is frequently helpful in getting a settlement, particularly where one of the parties has an unrealistic assessment of the case.

9. Other Customized ADR Processes. Use creativity and methods obtained through experience in getting a settlement, particularly where one of the parties has an unrealistic assessment of the case.

E. IMMUNITY OF MEDIATORS, ARBITRATORS AND NEUTRALS.

Any person designated by a court to serve as a volunteer ADR Neutral pursuant to an ADR Plan, and serving without compensation, shall be immune from suit based upon any actions engaged in or omissions made while serving in that capacity, and shall be indemnified against the costs of defending any claim based on such actions or omissions, to the extent permitted by applicable law, including Public Officers Law Sec. 17.

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F. STANDARDS OF CONDUCT OF ADR NEUTRALS.

1. Mediators acting pursuant to these rules shall conform to Model Standards of Conduct for Mediators (2005) promulgated by the American Arbitration Association, American Bar Association, and the Association for Conflict Resolution, in such form as may be adopted by the ADR Office with the approval of the Chief Administrative Judge (See www.mediate.com/articles/model_standards_of_conflict.cfm).

2. Arbitrators and Neutral Evaluators shall conform to the rules as may be adopted by

the ADR Office with the approval of the Chief Administrative Judge.

G. CONFIDENTIALITY OF MEDIATION.

A Mediator working under the banner of one of our CDRC’s has legal confidentiality pursuant to Article 21-A of the NYS Judiciary Act. Except as may be otherwise established by law (including Judiciary Law Art. 21A), rule or court order, all statements (verbal, nonverbal, or contained in any writing or other storage medium) made to court staff in the course of considering, initiating or reconvening, conducting, or participating in a mediation or retaining a mediator shall be deemed confidential and inadmissible in court, unless the parties have agreed otherwise in writing. Information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation. Contrast this with Settlement Conferences conducted by a judge, JHO, or court attorney, wherein statements (verbal, nonverbal, or contained in any writing or other storage medium) made and information given are not confidential.

H. NO STAY OF DISCOVERY OF PROCEEDINGS.

The general rule is that discovery and related litigation proceedings SHALL NOT be stayed pending completion of ADR proceedings unless specifically directed by the Court for good cause shown after a conference with the parties and/or their attorneys. Thus, the ADR neutral and/or Judge, should facilitate information exchange to the extent necessary for meaningful ADR.

I. OVERSIGHT AND QUALITY ASSURANCE.

The ADR Coordinator and an ADR Committee to be established by the Fifth District Administrative Judge will review the Post-Mediation Reports as kept by the clerks of the various courts and interface with the Judges and court staff of the various courts and regularly report his/her findings to the Fifth District Administrative Judge. This will measure the strengths and weaknesses of the Fifth Districts ADR Program so that the appropriate adjustments and/or corrective measures may be taken, if needed.

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J. PROVISION FOR LANGUAGE ACCESS. The New York courts will provide interpreting services for ADR within all courts. The CDRCs and other ADR providers will be required to provide interpreters for out-of-court proceedings.

K. COUNSEL’S OBLIGATION TO DISCUSS ADR.

All judges and quasi-judicial officials shall, at the first appearance, inform counsel of their obligation to advise their clients of the nature and extent of available ADR services.

L. CONFLICTS OF INTEREST.

All ADR providers, upon referral, shall immediately review and determine whether any conflicts of interest exist that may question their impartiality. Any such conflict shall be immediately disclosed to both the parties and the Court and appropriate action shall be taken to eliminate such conflict or proceed with the consent of the parties.

M. FIFTH JUDICIAL DISTRICT WEBSITE.

This Plan, along with ADR materials and information, shall be published on the Fifth Judicial District website. The Fifth Judicial District ADR Coordinator and his/her contact information shall also be set forth on the website.

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III. SUPREME COURT CIVIL & COMMERCIAL ADR PLAN. A. PURPOSE.

The purpose of the presumptive ADR Plan is to have cases proceed to the appropriate ADR process as early as possible in the case and to provide quicker, less expensive and potentially more satisfying alternatives to continuing litigation, without impairing the quality of justice or the right to trial. The Plan applies to all civil actions for which a Request for Judicial Intervention is filed, unless the Court, after a conference with the parties and/or their attorneys finds good cause why a case should not proceed with ADR at that time.

B. COURT NEUTRALS. The Fifth Judicial District Administrative Judge shall compile and publish rosters of neutrals who are qualified to receive ADR referrals from the Court. Such rosters shall include:

1. The list of trained and experienced Mediators being currently utilized by the United

States District Court for the Northern District of New York, in its mandatory mediation program (the “Federal Roster”). These neutrals shall be provisionally accepted to the state court rosters subject to future compliance with training and application requirements that the state court may institute; and

2. Local CDRC’s to the extend that they offer mediation services for the area of law being litigated.

C. PRIVATE NEUTRALS. Nothing in this Plan shall prohibit the parties from selecting a neutral who is not a member of the Court’s roster. Such private selections are presumed acceptable.

D. PRELIMINARY CONFERENCE. 1. Since the purpose of this Plan is to have cases proceed to the appropriate ADR

method as early as possible in the case, upon the filing of a Request for Judicial Intervention and the assignment of a judge, a Preliminary Conference shall be timely scheduled. (See, 22 NYCRR §§202.12 and 202.19). Before and/or during the Preliminary Conference, the assigned judge or a designated screener shall screen the case in order to determine if ADR is appropriate.

2. Attorneys fully familiar with the case shall appear at the Preliminary Conference and

be prepared to discuss possible settlement of the case. If the attorney does not have final settlement authority, a person with final settlement authority shall either appear with the attorney or be available by phone. If the case is not settled, then ADR

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alternatives and the need for any preliminary discovery prior to ADR, shall be discussed.

3. The case shall be referred immediately to the appropriate ADR process unless the

Court, in its sole discretion after discussion with the parties or their attorneys, determines that discovery is necessary prior to ADR.

E. SELECTION OF NEUTRAL.

1. Unless the Court has determined ADR is not appropriate, it shall be the obligation of

the parties and/or attorneys to confer in good faith and select a mutually acceptable Private Neutral or Mediator from the Court’s Roster, which shall include the Federal Roster. If the parties fail to agree upon an ADR method within ten (10) days of the Preliminary Conference, they shall notify the Court, and the Court shall designate a Neutral or Mediator from the Court’s Roster or Federal Roster and shall issue an appropriate Order notifying the parties of the Neutral’s identity.

2. Promptly upon being selected, the Mediator/Neutral shall conduct a telephone

conference, jointly or separately, with counsel and any unrepresented party, to fix the date and place of the mediation/Conference.

3. In cases involving pro se litigants, indigent litigants, litigants not willing or able to

pay a Private Neutral or Mediator, or any other case the Court deems appropriate, in lieu of a referral to mediation, the Court may direct an immediate Settlement Conference with appropriately trained non-judicial staff, or a court attorney referee, or a judicial hearing officer, to be concluded within sixty (60) days of the Preliminary Conference. Nothing contained herein shall preclude the assigned judge or his or her Principal Court Attorney from conducting such a settlement conference.

F. ADR REPORT TO THE COURT. 1. Within five (5) days after the conclusion of the ADR process, the assigned judge or court staff, the CDRC or the ADR neutral shall send a report (the “ADR Report”) to the Court Clerk, in a form approved by the Fifth District Administrative Judge, on notice to all parties, that contains all information required by the Statewide ADR Data Collection program (ADRDC). 2. Upon the Courts receipt of the ADR Report, the Court shall schedule an appearance

date for the parties and/or their attorneys to appear; and a. So Order, any stipulated settlement, or if there is no stipulated settlement; b. Proceed with discovery as directed by the preliminary conference order.

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G. COMPENSATION OF MEDIATORS.

1. Court Staff provide mediation services as part of their work and shall not be eligible to receive compensation for mediation services provided under this Plan. Any compensation for Mediators working by arrangement with the local CDRC shall be as agreed upon with the District Administrative Judge.

2. Mediators (excluding Court Staff) shall be required to provide the first hour of preparation time at no charge. If necessary, the Mediator may charge an additional $150.00 per hour for up to two hours of additional preparation time for matters which require substantial preparation. Mediators shall receive $150.00 per hour for the first two hours of the initial mediation session. Thereafter, Mediators shall receive no more than $325.00 per hour for additional time spent in mediation. If the mediation session is cancelled by any party less than 48 hours prior to the scheduled mediation session or fails to appear at the scheduled mediation session, the cancelling or non-appearing party shall be responsible to compensate the Mediator a fee of $250.00.

Mediators shall require that counsel and/or parties sign an agreement confirming the terms of retention and compensation in advance. Time spent in travel by mediators is not reimbursable under this program unless the parties consent to cover travel costs.

3. Mediator fees shall be divided equally among all separately represented parties, unless otherwise agreed or ordered by the Court. Mediator fees shall be paid by the parties within fourteen (14) days of the conclusion of mediation.

4. If the case is referred for a Settlement Conference with an appropriate non-judicial court employee, a court attorney referee or judicial hearing officer, there shall be no charge by the Mediator for settlement conference services. The Court is not prohibited from knowing the results or being provided any information from the Settlement Conference.

5. A judge assigned to a case who determines at the Preliminary Conference that the

case should be referred to mediation shall not refer the case to his/her appointed principal law clerk, or any other non-judicial court employee directly assigned to that judge. This does not preclude the principal law clerk from performing settlement conferences on cases assigned to the judge.

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IV. SUPREME COURT FORECLOSURE ADR PLAN.

A. PURPOSE. The Fifth Judicial District seeks to enhance the existing use of ADR settlement

conferences in foreclosure cases and to do so at the earliest appropriate opportunity. B. CPLR 3408[a][1] requires the Court to conduct a Foreclosure Settlement Conference

(FSC) in all owner-occupied, residential mortgage foreclosure actions. These FSCs thus serve as a statutorily mandated form of ADR by requiring the parties to “negotiate in good faith to reach a mutually agreeable resolution, including but not limited to a loan modification, short sale, deed in lieu of foreclosure or any other loss mitigation, if possible” (CPLR 3408[f]). 1. In the Fifth Judicial District, a Foreclosure Settlement Part has been established in the

counties of Onondaga and Oneida before a Judicial Hearing Officer. In the remaining counties for the Fifth Judicial District (Jefferson, Lewis, Herkimer and Oswego), the judge assigned to the case shall conduct the Settlement Conference.

2. In Onondaga County, the Court has partnered with Legal Services attorneys who have

successfully assisted many unrepresented homeowners facing the threat of foreclosure to asset them in all aspects of negotiations with their lenders.

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V. SUPREME COURT MATRIMONIAL ADR PLAN.

A. PURPOSE.

In the Fifth Judicial District, the vast majority of matrimonial actions are uncontested. Moreover, the bulk of the remaining contested matrimonial matters are resolved through ADR Settlement Conferences. Indeed, through the extensive settlement conferencing of our matrimonial judges, very few matrimonial actions are tried to conclusion. It is the goal of this matrimonial plan to increase the use of ADR through Settlement Conferencing and Mediation at the earliest appropriate opportunity.

B. ONONDAGA AND ONEIDA COUNTIES.

There are dedicated matrimonial parts in Onondaga and Oneida counties composed of:

1. Onondaga County: Two (2) judges and one (1) Court Attorney Referee, and 2. Oneida County: One (1) Court Attorney Referee servicing multiple (± 5) judges.

3. In Onondaga and Oneida counties, the Court Attorney Referee and Court Attorneys

shall conduct ADR Settlement Conference or Mediation of contested matrimonial cases early in the litigation. A Preliminary Conference before a Court Attorney Referee shall be held within forty-five (45) days of the filing of a Request for Judicial Intervention. A Scheduling Order shall be agreed to at the Preliminary Conference. The Scheduling Order shall:

a. Direct that the parties comply with discovery and the exchange of financial

information timely, and

b. Schedule a date before a Court Attorney Referee to engage in a form of ADR, be it a Settlement Conference or Mediation. The ADR Session shall occur no later than sixty (60) days after the date of the Preliminary Conference.

c. If the Court Attorney Referee is unavailable to conduct the ADR Settlement Conference or Mediation, the matter shall be conferenced by one of the Matrimonial Judge’s Court Attorneys.

d. Court Attorneys shall not be assigned to conduct Mediation on any case that is assigned to their judge. Nothing herein precludes any Court Attorney from conducting settlement conferences for any judge, including their judge.

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e. The issues which shall be considered in the ADR Settlement Conference or Mediation for matrimonial cases shall include:

i. grounds for divorce; ii. parenting time (custody and visitation); iii. all issues of equitable distribution; iv. maintenance and child support; and v. attorney’s fees.

f. The attorneys and the parties shall be directed to attend the ADR Settlement

Conference or Mediation along with any attorney for the child(ren) appointed.

g. The court employee presiding over this ADR Settlement Conference or Mediation shall submit to the court an ADR Report, on a form approved by the District Administrative Judge, within five (5) days of conclusion of this process, including the outcome of the ADR Settlement Conference or Mediation and what, if any, issues were resolved.

h. If the initial ADR is unsuccessful, the Court shall have the option to continue to conduct ADR Settlement Conferences throughout the duration of the case to the extent appropriate.

i. This ADR Plan does not prohibit the parties from engaging in private mediation

or any other form of private ADR.

C. HERKIMER COUNTY. 1. In Herkimer County, the Judge assigned to the case shall refer the case to a Judicial

Hearing Officer to conduct ADR Settlement Conferences or Mediation early in the litigation. The Preliminary Conference shall be held within forty-five (45) days of the filing of the Request for Judicial Intervention and the resulting Order shall schedule a date for the ADR Settlement Conference or Mediation to occur before a Judicial Hearing Officer. That date shall be within sixty (60) days of the Preliminary Conference.

2. To the extent a Judicial Hearing Officer is unavailable, the ADR Settlement

Conference or Mediation shall be scheduled before one of the Court Attorneys of the Supreme Court Justices in that county or the adjoining counties.

3. Court Attorneys shall not be assigned to conduct Mediation on any case that is assigned to their judge. Nothing herein precludes any Court Attorney from conducting settlement conferences for any judge, including their judge.

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4. The issues which shall be considered in the ADR Settlement Conference or Mediation for matrimonial cases shall include: a. grounds for divorce; b. parenting time (custody and visitation); c. all issues of equitable distribution; d. maintenance and child support; and e. attorney’s fees.

5. The attorneys and the parties shall be directed to attend the ADR Settlement

Conference or Mediation along with any attorney for the child(ren) appointed.

6. The court employee presiding over this ADR Settlement Conference or Mediation shall submit to the court an ADR Report, on a form approved by the District Administrative Judge, within five (5) days of conclusion of this process. The ADR Report shall state the outcome of the ADR Settlement Conference or Mediation and what if any issues were resolved.

7. If the initial ADR is unsuccessful, the Court shall have the option to continue to conduct ADR Settlement Conferences throughout the duration of the case to the extent appropriate.

8. This ADR Plan does not prohibit the parties from engaging in private mediation or

any other form of private ADR.

D. JEFFERSON, LEWIS AND OSWEGO COUNTIES. 1. In Jefferson, Lewis and Oswego counties, the Court Attorneys of the Justices

assigned to the cases shall conduct an ADR settlement conference or mediation early in the litigation. The Preliminary Conference shall be held within forty-five (45) days of the filing of the Request for Judicial Intervention and the resulting Order shall schedule a date for the ADR Settlement Conference or Mediation to occur before a Judicial Hearing Officer. That date shall be within sixty (60) days of the Preliminary Conference.

2. Due to the limited judicial resources in Lewis and Jefferson Counties, the ADR

Settlement Conference or Mediation in those counties shall be scheduled before one of the Court Attorneys of the Supreme Court Justices in that county or the adjoining counties.

3. Court Attorneys shall not be assigned to conduct Mediation on any case that is assigned to their judge. Nothing herein precludes any Court Attorney from conducting settlement conferences for any judge, including their judge.

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4. The issues which shall be considered in the ADR Settlement Conference or Mediation for matrimonial cases shall include:

a. grounds for divorce; b. parenting time (custody and visitation); c. all issues of equitable distribution; d. maintenance and child support; and e. attorney’s fees.

5. The attorneys and the parties shall be directed to attend the ADR Settlement

Conference or Mediation along with any attorney for the child(ren) appointed.

6. The court employee presiding over the ADR Settlement Conference or Mediation shall submit to the court an ADR Report, on a form approved by the District Administrative Judge, within five (5) days of conclusion of this process. The ADR Report shall state the outcome of the ADR Settlement Conference or Mediation and what if any issues were resolved.

7. If the initial ADR is unsuccessful, the Court shall have the option to continue to

conduct ADR Settlement Conferences throughout the duration of the case to the extent appropriate.

8. This ADR Plan does not prohibit the parties from engaging in private mediation or

any other form of private ADR.

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VI. FAMILY COURT ADR PLAN.

A. INTRODUCTION.

The Fifth Judicial District contains Family Courts with a wide range of filings, staffing levels and resources. In light thereof, the provision of ADR services will necessarily vary to some extent from Family Court to Family Court. In that regard, one set of protocols has been developed for an ADR Program for custody and visitation petitions in the largest Family Court in the District (Onondaga County) and a separate set of protocols have been developed for the remaining five Family Courts (Herkimer, Jefferson, Lewis, Oneida and Oswego).

B. ONONDAGA COUNTY CUSTODY/VISITATION PRESUMPTIVE MEDIATION PROTOCOLS.

1. Custody and Visitation Petitions including original filings (no prior order),

modifications, enforcement and violation petitions filed in Onondaga County Family Court shall be referred for mediation as set forth hereinafter. The procedures set forth herein are developed to foster and advance the interests of litigants and their children engaged in family law litigation.

2. The mediators shall consist of trained, court-approved third parties who shall oversee the conflict resolution process. The mediator shall act as a neutral third party who shall assist the parties in identifying the issues, facilitating communication between the parties, and helping parties to negotiate with each other to achieve a mutually acceptable resolution to their dispute.

3. Mediators are not allowed to offer their own opinion on the merits of the case, or their view as to the likelihood of success in court. The mediator facilitates a conversation between the parties about any issue the parties desire to discuss relating to custody and visitation.

4. Each person shall be allowed an opportunity to explain his/her side of the conflict,

without interruption. Both sides discuss areas of disagreement and investigate possible solutions. With the assistance of the mediator, they then decide which solutions best meet their needs.

5. If the parties reach a complete or partial solution, the mediator drafts an agreement

which the parties are encouraged to sign. Each person receives a copy of the agreement. The parties have control over the terms and content that are set forth in any agreement subject to court review and approval as referenced below in section D (4), Post Mediation Report to Court.

6. Subject to a signed Agreement to Mediate, everything said at mediation is completely confidential. Neither party may use what the other party says in court, and the mediator cannot be compelled to testify about the parties' communications during the

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mediation process. Mediation is completely voluntary for all parties.

7. The District Administrative Judge shall establish a roster of mediators eligible to receive assignments of a cases. Each mediator must meet the minimum qualifications and criteria established by the Chief Administrative Judge, including continuing education requirements.

C. ADR AND MEDIATION RESOURCES.

1. In Onondaga County, New Justice Conflict Resolution Services (the “CDRC”) is

under contract with the NYS Unified Court System and is duly authorized to serve as court mediators in custody/visitation matters. New Justice also provides state certified mediation skills training programs and is amenable to training qualified court employees as mediators.

2. Court personnel will be utilized to conduct settlement conferences, and if properly trained, mediation sessions. Initially, five (5) court attorneys and two (2) employees of the Family Court Clerk’s Office shall be trained to conduct ADR settlement conferencing and if properly trained, mediation.

D. ADR/PRESUMPTIVE MEDIATION OF CUSTODY AND VISITATION CASES

PROTOCOLS.

1. Upon filing of Custody and Visitation petitions, each case shall be screened by the Court for suitability of referral to mediation or other available ADR proceedings.

2. In original Custody and Visitation filings, paternity must first be ascertained.

a. Confirm paternity if unmarried, search putative father registry/acknowledgment

of paternity with filing; out-of-state births need to be confirmed by birth certificate and/or acknowledgement of paternity.

b. Upon verification of paternity, the Family Court processing supervisor shall

screen the petition for disqualifying factors, such as:

i. Existing or recent Orders of Protection – Search order of protection registry (for active stayaway, within 2 years) and SORA;

ii. Neglect or Abuse adjudication within 2 years or under Order of Disposition; iii. Pending criminal charges against party (complainant/victim); iv. Address confidentiality request; and v. Petition already pending before the court (mods/cross petitions, etc.).

c. Where paternity is not confirmed or screening determines the existence of one or

more disqualifying factors, the matter shall be determined unsuitable for presumptive mediation and will be scheduled for initial appearance in Family

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Court on the first available intake date. The Court, in its discretion, may subsequently determine that cases initially deemed inappropriate for mediation should be referred to mediation.

3. Processing and Scheduling for Initial Court Appearance of cases subject to

presumptive mediation.

a. Each petition shall be processed by entering the data into UCMS and/or FileMaker if appropriate, prior to referring the matter to mediation {or scheduling the matter for initial Court appearance}. All filed dockets shall be assigned a scheduled date for initial appearance within forty-two (42) calendar days before an Onondaga County Family Court Judge.

b. Upon the assignment and scheduling of the initial Court appearance, the Family Court Clerk shall immediately provide a “service packet” to the filing Petitioner and a notification of referral of this matter to Presumptive ADR Mediation. The service packet shall consist of: i. Summons to appear in Family Court; ii. Copy of the Petition; and

iii. Notification of a referral of this matter to Presumptive ADR Mediation.

c. Petitioner shall be provided instructions to effectuate personal service upon the respondent within the required time frames.

d. The Family Court Clerk shall also immediately notify our local CDRC duly authorized to mediate custody or visitation issues, of those cases that are being referred to them for mediation. The notice of referral shall be accompanied with a copy of the petition and contact information for the parties, their attorneys if any and the attorney for the child, if any.

e. Upon receipt of the referral, New Justice shall immediately send a confirmation of the assignment to the selected mediator, along with referral form, mediation intake form, a copy of the petition, personal information form, counsel/legal representatives contact information or some combination of these formats and confirm that all necessary DV screening has been done.

f. Within five (5) business days, the mediator shall contact the parties and their legal representative and schedule an initial mediation session. The initial session should be scheduled for two (2) hours. Additional mediation session(s) may be scheduled following the initial session, if necessary. All sessions shall be conducted and completed within thirty (30) days of receipt by the CDRC of the referral from Family Court.

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g. If allegations of child abuse or neglect are made by any party during mediation session, the mediator shall immediately terminate the mediation and refer the matter back to Family Court. The Mediator shall advise the parties in writing of the availability of Child Protective Services.

4. Post Mediation Report to Court. a. Within five (5) days of the conclusion of the mediation or any other Court

referred ADR or following any unsuccessful attempt to engage the parties in mediation, an approved ADR Report shall be sent to the Court by the mediator, who shall also attach any signed consent agreement executed by both parties.

b. Upon the filing of a ADR Report with Family Court:

i. If a signed consent agreement has been received, the matter is to be reviewed by the Court, and if the Court approves, the Court shall sign an Order of Disposition incorporating the signed consent agreement. The Court shall then advise the parties that the initial Court appearance is cancelled;

ii. If the judge is not willing to approve the signed consent agreement and

execute a proposed Order of Disposition, Family Court shall proceed with the initial appearance of the parties, as originally scheduled, and further necessary proceedings through conclusion and disposition of the case.

5. Initial Appearance.

At the initial appearance, the Court shall engage in a settlement conference in an attempt to resolve the matter. If this ADR process is unsuccessful and the Court determines that the parties did not knowingly or intentionally reject mediation, the Court may again refer the parties to mediation or an early settlement conference. Regardless of the re-referral, the Court shall also proceed with scheduling the matter for further appearances and trial, as appropriate.

E. JEFFERSON, HERKIMER, LEWIS, ONEIDA AND OSWEGO

CUSTODY/VISITATION PRESUMPTIVE MEDIATION PROTOCOLS.

1. At the first appearance of all custody and visitation petitions including originals, modifications, enforcements and violation petitions filed in the above counties, the Court, in the first instance, shall engage in a settlement conference in an attempt to resolve the matter. If the matter is not resolved through that ADR process, each case shall be screened by the Court for suitability of referral to mediation or other available ADR processes.

2. Upon verification of paternity and the Court being satisfied of jurisdiction, the Court

shall screen the petition for disqualifying factors, such as:

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a. Existing or recent Orders of Protection – Search order of protection registry (for active stayaway, within 2 years) and SORA;

b. Neglect or Abuse adjudication within 2 years or under Order of Disposition; c. Litigant incarcerated; d. Pending criminal charges against party (complainant/victim); e. Address confidentiality request; and f. Petition already pending before the court (mods/cross petitions, etc.). g. History of domestic violence or power imbalance.

3. Where the Court finds the existence of one or more disqualifying factors, the matter shall be determined unsuitable for presumptive mediation and will proceed to be scheduled for further appearances and/or trial. The Court, in its discretion, may subsequently determine that cases initially deemed inappropriate for mediation should be referred to mediation.

4. Upon the Court deciding that the matter may be referred to mediation or other

available ADR proceedings, the Court shall refer the matter to an authorized mediator. Simultaneously, the Court will provide to the parties and their counsel information regarding Mediation/Alternative Dispute Resolution, the meaning and purpose of the referral and the mediation provider (CDRC) to be contacted. The CDRCs under contract with the NYS Unified Court System who are authorized as mediators in custody/visitation matters in each county are set forth as follows:

a. Jefferson: Resolution Center of Jefferson and Lewis Counties b. Herkimer: Peacemaker Program and Catholic Charities Dispute Resolution Center c. Oneida: Empowerment Pathways d. Oswego: New Justice Conflict Resolution Services e. Lewis: Resolution Center of Jefferson and Lewis Counties

5. Prior to referring the matter to mediation, the Court, to ensure the timely disposition

of the case within Standards & Goals, shall schedule the matter for further proceedings and/or trial.

6. The Family Court Clerk shall also immediately notify their CDRC of the cases

referred to them for mediation and provide the CDRC with a copy of the petition and contact information for the parties and their attorneys if any, and the attorney for the child, if any.

7. Upon receipt of the referral, the CDRC shall designate a mediator and immediately

confirm the assignment to the selected mediator together with a [referral form, mediation intake form, a copy of the petition, personal information form, counsel/legal representatives contact information or some combination of these formats].

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8. Within five (5) business days, the designated mediator shall contact the parties and their counsel and schedule an initial mediation session. The initial session should be scheduled for 2 hours; additional mediation session(s) may be scheduled following the initial session, if necessary. All sessions shall be conducted and completed within 30 days of receipt by the CDRC of the referral from Family Court.

9. If allegations of child abuse or neglect are made by any party during mediation

session, the mediator shall immediately terminate the mediation and refer the matter back to Family Court. The Mediator shall advise the parties in writing of the availability of Child Protective Services.

10. Within five (5) days of the conclusion of the mediation or any other court ADR process or following any unsuccessful attempt to engage the parties in mediation, an approved ADR Report shall be sent to the court by the mediator, who shall also attach any signed consent agreement executed by both parties.

11. Upon the filing of a ADR Report with Family Court.

a. If a signed consent agreement has been received, the matter is to be reviewed by the Court for review and signing of a proposed Order of Disposition incorporating the signed consent agreement. The Court shall advise the parties that the initial Court appearance is cancelled in conjunction with the signing of a dispositional order terminating the proceeding.

b. If the Court is not willing to approve the signed consent agreement or execute a

proposed Order of Disposition, the matter shall proceed pursuant to the Court’s scheduling order, or in any other manner as directed by the Court.

F. FAMILY COURT PERMANENCY MEDIATION PROTOCOL. The Fifth Judicial District presently implemented permanency mediation in all of its Family Courts following enactment of Family Court Act § 1018. The specific protocols are described in detail in attached Appendix A. The Plan is to review and improve the efficiency and effectiveness of this ADR program including increasing the number of paid mediators through an existing grant.

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VII. SURROGATE’S COURT ADR PLAN.

A. TIMING OF REFERRAL TO ALTERNATIVE DISPUTE RESOLUTION (ADR). 1. The Fifth District Administrative Judge shall establish and maintain a roster of ADR

Neutrals and Judicial Hearing Officers, trained and experienced with Surrogate’s Court proceedings.

2. At the parties’ first appearance, the Court shall conduct an assessment of the dispute and shall conduct a Settlement Conference. The Court may also schedule a SCPA Section 1404 exam (probate), a SCPA Section 2211 exam (accounting), or employ other pre-discovery devices, in the Court’s discretion, to settle the dispute. If the dispute is not resolved at the first appearance and upon completion of jurisdiction, the court shall advise the parties’ and/or their attorneys of the types of ADR processes available to them.

3. If the Court, after consulting with the parties’ and/or attorneys, determines that the dispute is appropriate for ADR, the Court shall, by Order of Reference, or other form of referral, direct the parties to the appropriate CDRC or ADR Neutral, from the court’s roster. Nothing contained herein shall prohibit the parties from seeking a private ADR Neutral at their sole cost and expense, provided the private ADR Neutral’s efforts do not delay the disposition of the proceeding.

B. ORDER OF REFERENCE.

1. The Order of Reference or referral shall specify:

a. The name of the CDRC or ADR Neutral from the court’s roster. In the discretion

of the Court, the dispute may be referred to a Judicial Hearing Officer (JHO), Court Attorney Referee (CAR), or other qualified Court personnel. The details of such a referral shall be contained in the Order for referral.

b. That the parties are required to meet with the CDRC or ADR Neutral within forty-five (45) days of receipt of the Order of Reference or referral.

c. A date thereafter upon which to return to Court.

2. Upon receipt of the Order of Reference or referral, the parties and/or their counsel shall contact the CDRC or ADR Neutral listed therein within five (5) business days to: a. Confirm the initial meeting, which shall take place at the courthouse, unless the

parties agree otherwise, or b. Inform the Court of their choice to meet with a private ADR Neutral to be paid for

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by the parties.

C. The ADR Process.

1. Time to Complete ADR: Unless otherwise permitted by the Court, the parties shall complete the ADR process within sixty (60) days of the first meeting with the CDRC or ADR Neutral. If additional time is necessary, the parties must submit a stipulation to the Court requesting an extension.

2. Conclusion of ADR: The ADR process concludes upon all parties signing a written

agreement resolving all or some of the matters in dispute, or whenever any party or the CDRC or ADR Neutral decides that the process has ended and notifies the others orally or in writing. Upon the conclusion of the ADR process and within five (5) days thereof, the CDRC or ADR Neutral shall email all parties, their attorneys and the Court, confirming that the process has ended.

3. Agreements: Agreements resolving some or all the legal matters in dispute shall be signed by all parties and submitted to the Court. If no agreement is signed by the parties, then the parties’ negotiations during the ADR process shall remain confidential.

D. ADR REPORT TO THE COURT.

1. Within five (5) business days after the conclusion of the ADR process, the CDRC or

ADR Neutral shall send a report (the “ADR Report”) to the Court, in a form approved by the Court, on notice to all parties, that states: a. The date of the initial session and whether each party and counsel appeared at the initial session;

i. The dates of any subsequent sessions that were held; and ii. Whether the parties reached partial, complete, or no agreement on the issues.

2. Referral Back to Court: Upon the Courts receipt of the ADR Report, the Court shall schedule an appearance date for the parties and/or their attorneys to appear, and

a. So Order, any stipulated settlement, or if there is no stipulated settlement; then b. Proceed with discovery and/or set the matter down for trial.

3. A post-mediation survey shall be offered to the parties for completion, with the

assistance of the CDRC. The court clerk will keep these surveys to be analyzed and recorded to UCMS and/or FileMaker, as may be required.

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VIII. CITY COURT ADR PLAN.

A. INTRODUCTION. This Plan pertains to City Court Small Claims, Commercial Claims, Civil Part, and Landlord-Tenant Proceedings, in the Fifth Judicial District.

B. SMALL CLAIMS AND COMMERCIAL CLAIMS. Upon the filing of the action in the small claims and commercial claims parts of the City Court: 1. The City Court Clerk’s Office shall provide the Petitioner/Complainant with an

Alternative Dispute Resolution (ADR) handout prepared by the local Community Dispute Resolution Center (CDRC). The ADR handout will explain those services offered by the CDRC and others. An ADR handout will be drafted for each of the six (6) counties in the Fifth District, listing the various services each county has to offer.

2. The ADR handout will be attached to the petition/complaint and mailed by the city

court clerk’s office to the Respondent/Defendant, so no additional postage costs should be incurred.

3. A copy of the petition/complaint with the petitioner’s and respondent’s contact

information (name, address, telephone number and email address if available), including the return date, shall be sent electronically by the city court clerk’s office to the CDRC. The CDRC shall establish and designate a separate email address for these notifications. Within five (5) days, the CDRC shall contact the parties and/or their attorneys and offer their ADR services.

C. THE CIVIL PART AND LANDLORD-TENANT PART. 1. Upon the filing of the action in the civil part and/or landlord-tenant part of the city

court:

a. The filing party shall be given the ADR handout with instructions to serve the ADR handout together with the petition/complaint upon the opposing party;

b. A copy of the petition/complaint with the petitioner’s and respondent’s contact

information, shall be sent electronically by the city court clerk’s office to the CDRC; and

c. The CDRC shall establish a separate email address for these notifications. Within five (5) days, the CDRC shall contact the parties and/or their attorneys and offer their ADR services.

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2. For all Landlord-Tenant Actions. If the matter is not resolved by the first Court appearance, then: a. The judge, in the first instance, shall call the case and then allow the parties

and/or their attorneys to meet privately to settle the matter without the assistance of the court. Once the parties have discussed settlement, then:

i. If the matter is settled, the parties shall appear before the presiding judge and

spread the settlement on the record, or

ii. If the matter is not settled, the matter shall come before the Judge, who shall attempt to facilitate a settlement between the parties or refer the matter to ADR and adjourn for 14 days or proceed to trial.

D. REPORT OF ADR.

1. If the mediation or settlement conference is not successful, the CDRC or the individual conducting the settlement conference will complete an ADR Report and forward the report to the city court clerk’s office for filing. The matter will be heard on the date provided for in the notice of petition or summons, unless adjourned.

2. ADR shall be scheduled prior to the Court return date and any party or ADR provider may request an adjournment to facilitate the ADR process. Once the mediation or settlement conference is concluded, the CDRC shall complete an ADR Report and notify the City Court Clerk’s office of the outcome in writing. If there is a stipulated settlement, the CDRC or settlement conference officer will provide same to the court in writing and the outcome will be “so ordered” by the Judge. If the action is withdrawn, the CDRC or settlement conference officer will notify the court clerk’s office in writing, who will note the outcome of the case in the case management system.

E. PRE-EXISTING SYRACUSE CITY COURT ADR PROGRAM.

1. All Small Claims Actions: Small claims will be heard by binding arbitration with volunteer lawyers, unless a judge is requested. The volunteer lawyers will be arranged and scheduled by the city court clerk’s office contacting the volunteer lawyers who have agreed to participate.

2. All Civil Actions (up to $6,000.00): All civil actions, which are brought in the civil part and not the small claims part, shall be determined by mandatory arbitration and the cases will be heard by one of the attorneys on the volunteer lawyers’ roster.

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F. POST-MEDIATION SURVEY.

A post-mediation survey shall be offered to the parties for completion, with the assistance of the CDRC. The court clerk will keep these surveys to be analyzed and recorded to UCMS and/or FileMaker, as may be required.

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IX. APPENDIX A

5th Judicial District Permanency Mediation Program The 5th Judicial District Child Permanency Mediation Program will promote collaborative planning in selected child welfare matters, through mediation between any parties or interested persons in a child welfare matter which may include: the local departments of Social Services, the respondent parents or caregivers, their advocates and families, the attorney for the child(ren), foster parents or service providers. The Family Court Act specifically authorizes the Court to make referrals to mediation at any point in a child protective proceeding to advance permanency planning for subject children1. The mediation program provides a forum where participants, including extended family and any other important people in the child’s life, can work together in a non-adversarial setting to create a plan that will provide the best outcome for the subject child or children. In mediation, the participants discuss and define issues, explore options and find mutually acceptable solutions. The process provides participants an opportunity to 1) develop a plan for ensuring safety for the child; 2) explore and plan for services to meet the child's physical, mental, educational and emotional needs; 3) discuss steps that can be taken to preserve and strengthen the family; and 4) discuss permanency plans. In addition, mediation provides an avenue for individuals involved in a case to resolve conflicts among themselves (whether between family members or between the parties and the workers) so that they are able to focus on achieving the best outcome for the child(ren).

II. DEFINITIONS As used herein, “mediation” shall describe a consensual dispute resolution process in which a specially trained neutral third party helps disputants to identify issues, clarify perceptions and explore options for a mutually acceptable outcome. In general, mediators do not offer their own opinions regarding likely court outcomes or the merits of the case. Instead, mediators offer the opportunity to expand the settlement discussion beyond the legal issues in dispute and focus on developing creative solutions, which emphasize the parties' practical concerns.

1 Article 10, §1018

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As used herein, “participants” may include the following: • The local department of social services caseworker, and supervisor, and attorney; • Respondent parent(s) and their attorney(s); • The attorney for the child(ren); • The subject child(ren) where appropriate, with the consent of his/her attorney; • Foster parent(s) where appropriate; and Service providers, relatives or others who

may have a stake in the case or who can be a resource to support permanency planning where appropriate.

III. POLICIES AND PROCEDURES

1. CONFIDENTIALITY

Section A: Confidentiality Provision

1. Except as otherwise expressly provided herein, all writing relating to the subject or process of a mediation including memoranda, work products or case files of a mediator is confidential. All information disclosed during mediation is confidential and shall not be subject to disclosure in any judicial or administrative proceeding. All communications whether in writing, verbally or by other means, made during the course of mediation or in reference to the substance of mediation by any party, mediator or any other person present are confidential and shall not be subject to disclosure in any judicial or administrative proceeding.

Section B: Exceptions to Confidentiality

1. Notwithstanding the confidentiality provisions set forth in Section A, information or communications may be subject to disclosure in any judicial or administrative proceeding in the following circumstances:

(a) All parties to the mediation and the mediator agree to waive

confidentiality. The waiver shall specify the individual communication(s) or information that will be disclosed, the person or entity to whom the disclosure will be made, and the purpose of the disclosure or,

(b) The communication or information relates to new allegation(s) of child abuse or neglect as defined by law which must be reported pursuant to Social Service Law §413 or,

c) The communication or information constitutes a credible threat of serious and imminent harm, either to the speaker or to another person or entity, in which case the appropriate authorities and/or potential victim may also be notified.

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2. A written agreement may be submitted to the court for review. Only those mediated agreements which are reviewed by and incorporated into an Order of the court may be admissible in any judicial or administrative proceeding.

2. REFERRAL PROCESS Referral to mediation may be made by the Court, either on its own initiative or at the request of any person involved in the proceeding. Referrals may be made at any point during the case where the Court believes an in-depth discussion might lead to a resolution of a particular issue or of the case as a whole.

Upon determining to refer the case to mediation, the Court will:

a. Select a date for the mediation session and a location within the courthouse, with all the parties present. Attendance at this introductory session is mandatory.

b. The date selected should be at least three weeks away to permit case development and to facilitate the appearance of necessary participants (eg. supervisory staff and foster parents). Two hours should be allocated for the mediation session.

c. Provide the parties with information regarding the 5th District Permanency Mediation program (such information to be provided to the Court by the Child Welfare Court Improvement Office).

d. Fill out the referral sheet indicating the issues or areas to be addressed in mediation and email it to the Project Manager. Provide the mediation program staff access to the petition, the fact-finding order (if completed), the dispositional order (if completed) and any reports or information the Court deems pertinent.

3. INTAKE AND CASE DEVELOPMENT PROCESS

After receiving a referral from the Court, the mediators will provide information designed to help parties make an informed choice as to whether or not they wish to participate in mediation. Such information will be provided in printed materials as well as in pre-session contacts between the mediators and the parties and in the mediators’ presentation at the initial session. The mediators will:

a. Review referral sheet indicating the issues or areas to be addressed in mediation. b. Contact all the participants starting with the caseworker and then the attorneys

and, with their permission, their clients. Other individuals whose participation would assist in the mediation who may be identified by the parties may participate only by mutual consent of all the parties and the mediators.

c. Contact the attorney for the child(ren). Children will be permitted to participate in mediation in consultation with, and only on consent of their attorney.

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d. In these conversations, the mediators will explain how mediation works, answer questions and begin to develop relationships with the individuals in the case. During case development, the mediators help the participants identify their own concerns and clarify what they perceive as problems to be addressed by the group.

e. Determine if conditions are present that might make mediation inappropriate. An example of such a condition would be a history of violence or coercion between or among people who would be present at the mediation. If the mediator determines that the matter is inappropriate for mediation based on a confidential communication, the mediator will refer the matter back to the Court, indicating only that mediation was not appropriate.

4. INITIAL MEDIATION SESSION

The initial mediation session will begin with the mediator reviewing with the parties information designed to ensure informed participation and decision-making. The mediator will present an overview of the mediation process, explain its confidential nature and the limits of such confidentiality. The mediator will also explain that participation in the mediation process is voluntary and that agreements can be reached only by mutual consent of the participants. Following an initial explanation of the mediation process, the mediation will commence upon written consent of the parties. Should any party not consent, the program will refer the matter back to Court, indicating only that mediation was not initiated. 5. THE MEDIATION PROCESS The mediation process typically involves the following stages:

a) Exchange of information; b) Identification and clarification of issues; c) Generating options for resolution; d) Analyzing options and selecting among them; and e) Developing a written agreement (or ending the session without agreement).

These stages can be completed in one session or may span multiple sessions. When the participants speak different languages, court-certified interpreters will be assigned by the Court to translate at the mediation session. The mediation process may include sessions with the whole group and also sessions where the mediators meet with smaller sub-groups or with individuals (caucuses). Since mediators are neither decision-makers nor advocates, and since all conversations are confidential (with the safety exceptions noted above), mediators may meet in caucus with individuals or with sub-groups of the participants with no issue of ex-parte communication. Thus, discussions can be tailored to meet the needs of individuals (eg. children who want to be part of the mediation but are not comfortable facing the large group) or to address specific situations (eg. a problem in the relationship between foster and birth parent that is preventing

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visitation). Participants can determine whose presence is necessary to address a particular issue and sessions are structured so that attorneys can participate in the most effective and efficient way possible. All participants in the mediation must be in agreement for a particular issue to be resolved. Written agreements listing all issues resolved will be reviewed and verbally approved by all participants at the end of the mediation session prior to submission to the Court. Copies of the mediation agreement will be distributed to all participants. On occasion, there may be an interim agreement between mediation sessions which the parties may choose to submit to the Court. After each session, a status report will be submitted to Court stating the date of the next mediation session or if the case has been closed. It may also contain any other information which all the parties decide to report to the Court. 6. MEDIATORS Section A: Qualifications, Training and Experience:

The New York State Unified Court System shall maintain county rosters of Consultant Mediators to mediate child abuse and neglect matters pending before the Family Courts in the Fifth Judicial District (Herkimer, Jefferson, Lewis, Onondaga, Oneida, and Oswego Counties). The program shall operate pursuant to the Rules of the Chief Administrative Judge (§146). Appointment to the rosters is at the discretion of the Administrative Judge of the Fifth Judicial District who, in consultation with the Coordinator of the NYS Child Welfare Court Improvement Program, shall review applications and make recommendations regarding appointment. Applicants may be requested to complete additional training or experiential requirements prior to admission to the roster if the applicant’s mediation training and experience does not fully prepare them for Consultant Mediator status. Minimum Requirements for appointment to the roster include completion of 24 hours of training in basic mediation skills and an additional 16 hours of specific training on mediation of child welfare (abuse and neglect issues). Applicants must also document substantial recent experience mediating actual cases, preferably family matters. Substantial recent experience is defined as at least 20 mediation cases conducted as either a solo or co-mediator within the last 3 years. Consultant Mediators without prior permanency mediation experience will be scheduled to co-mediate with an experienced mentor until the Program Administrator determines that they are prepared to solo mediate. Individuals that have completed the training requirement, but who don’t meet the experiential requirement may be admitted to the roster as an unpaid apprentice mediator. To attain paid Consultant Mediator status, an apprentice must conduct 20 mediation sessions as a co-mediator under the mentorship of a Consultant Mediator or

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otherwise document that the experiential requirement has been met and be recommended for admission by the review committee. Roster members must attend a minimum of six hours of additional approved training relevant to child welfare mediation practice every two years to remain on the roster.

Section B: Ethics/Standards of Conduct

Mediators will adhere to the following standards, including, but not limited to: I. Meet the practice and ethical standards of applicable codes of ethics

governing their profession. Maintain objectivity and control for bias during all mediation sessions.

II. Protect the confidentiality of all parties. This includes not releasing information or making recommendation about the case to the Court or any individual, except as compelled by statute. Limitations to confidentiality will be clearly explained to all mediation participants before sessions begin.

III. Decline to provide legal advice and not knowingly assist parties in reaching an agreement that would be unenforceable for reasons such as fraud, duress, illegality or the agreement being unconscionable.

IV. Consider the health, safety, welfare and best interest of the child in all phases of the process.

V. Disclose to the court, any participant and his/her attorney any conflicts or interests or dual relationships. Operate within the limits of his/her training and experience and disclose limitations or bias that would affect the mediation.

VI. Terminate any session in which issues of coercion, inability to participate, lack of intention to resolve the issues at hand or physical or emotional abuse during the mediation sessions are involved.

Section C: Mediator Payment

Consultant Mediators will be paid $75 per hour. Billable time will include case development activities, actual time spent in mediation sessions, and post-mediation agreement and paperwork preparation time. Travel time is not a billable expense. Mediators may bill up to ten (10) hours for each case referred. Additional hours beyond ten (10) will not be reimbursed unless pre-approved by the Program Administrator. If a scheduled mediation session cannot be held because a required party fails to show or for other good cause the Consultant Mediator may be paid for one hour for that session. Such payment is at the discretion of the Program Administrator. Reasonable travel reimbursement for mileage and tolls will be made for mediators traveling more than 35 miles from their home. Any travel over 100 miles must be pre-approved by the Program Administrator.

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5th Judicial District Permanency Mediation Program

It is expressly understood and accepted that the 5th District Permanency Mediation Program protocol is not an employment agreement and as such the Consultant will have no claim to Unified Court System benefits or employee considerations. The Consultant agrees to take full responsibility for declaration of income for tax purposes and for the payment thereof.

SIGNATURE (Consultant)

DATE

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X. APPENDIX B

ADR Organizational Charts for the

Fifth Judicial District Courts