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February 29, 2024

How Data Collection is Used for Improved Outcomes in Court-Annexed ADR

Danielle Shalov

Data collection and analysis allow ADR Administrators to both highlight the efficacy of their programs and direct resources to meet the current and future needs of their court. Each year, hundreds of cases are referred to mediation in the United States District Court for the Eastern District of New York (the “EDNY”). Data collected by the EDNY’s ADR Program (the “Program”) has provided the court with demonstrable evidence of the Program’s success in its ability to help facilitate settlement. In addition, the data has supported several initiatives to address issues facing the court in real time. Finally, data collected also shows positive outcomes as parties report positive experiences after participating in mediation.

The Program was created over thirty years ago and is one of the oldest District Court programs offering alternative dispute resolution options in the United States. In 2000, the Program began publicly sharing data collected in an annual report. Initially, this consisted of number of cases referred and number of cases settled (settlement rate). Reporting grew to include the case type for both referrals and settlement rates. This allowed the Program Administrator to track the types of cases that were most often referred to mediation, and their settlement rate across several years. In the first twelve years of public reporting, the Program saw a steady stream of referrals with an increase in total settlement rates from 54% to 64%. Moreover, the reports also provided granular information about case type and settlement rates. From 2003 to 2012 the three types of cases most often referred to mediation were civil rights, tort, and contract cases. Over the course of nine years, each of these categories either maintained a high settlement rate or saw a dramatic increase in settlement rates.

Civil Rights Cases

Year

Cases Referred

Mediation Completed

Settlement Rate

2002-2003

16

9

22%

2011-2012

44

31

58%

Tort Cases

Year

Cases Referred

Mediation Completed

Settlement Rate

2002-2003

35

19

74%

2011-2012

23

15

73%

Contract Cases

Year

Cases Referred

Mediation Completed

Settlement Rate

2002-2003

26

16

38%

2011-2012

25

14

71%

Relying on data collected and shared over this period, the ADR Administrator was able to conclude that “court-annexed mediation offers an effective [and] efficient […] means of resolving cases.”

The data also provided judges with specific information to use as they considered referring cases to mediation. Additionally, the information was available to parties referred to mediation who had solid data regarding the efficiency of the process. Over the years, the settlement rate in court-referred mediation has grown to 68% overall, as the number of cases referred has grown five times over from the year 2000 to 2021.

Data collected from ADR initiatives has also led to the development of programs that meet the emerging needs of the court. In October of 2012, Hurricane Sandy (“Sandy”) caused an estimated fifty billion dollars in property damage. In the years that followed, thousands of lawsuits related to Sandy were filed; the EDNY estimates that over 1,400 such cases were filed in its court. In an effort to create an efficient system to manage the Sandy cases, the EDNY’s Board of Judges appointed a Sandy Committee (the “Committee”). The Committee issued Case Management Order No. 1 (the “Case Management Order”) to “facilitate the efficient resolution of these matters in a manner designed to avoid duplication of effort and unnecessary expense.” Central to this design was the use of ADR. The Case Management Order directed parties to participate in either mediation or arbitration after completing an expedited discovery procedure. While mediation and arbitration had an established track record in the EDNY, the number of Sandy referrals required the program to be scaled up to be able to handle the increased caseload.

In response, the EDNY’s ADR Oversight Judge Robert M. Levy and ADR Administrator Gerald Lepp recruited and trained mediators and arbitrators to specifically handle Sandy claims (the “Sandy Panel”). Neutrals Simeon H. Baum and Peter H. Woodin contributed extensive time and resources to a full day training and presented along with representatives from FEMA, the Liaison Counsel, and the National Weather Service. Ninety-six mediators and fifty-one arbitrators were admitted to the Sandy Panel after this effort. Half of all the EDNY Sandy cases were sent to some form of ADR. An accounting in 2016 reveled an ultimate settlement rate of 75% for Sandy cases sent to mediation. “Mandatory ADR proved to be the most effective mechanism through which the EDNY quickly and efficiently resolved Sandy cases.”

The documented success of the Sandy Panel also paved the way for new initiatives and allowed the Program to be more proactive. In 2016, Judge Levy and the new ADR Administrator Robyn Weinstein noted the marked increase in Fair Labor Standards Act (“FLSA”) filings. From July 1, 2015, to June 30, 2016, FLSA cases made up 12% of all civil claims filed in the EDNY. Based upon the success of the Sandy panel, work began on replicating this model for FLSA cases. Working in conjunction with the ADR Oversight Judge, the Clerk of the Court and court personnel, the ADR Administrator designed and ran two specialized FLSA trainings for mediators in 2016. Mediators who successfully completed the training were added to a new specialized FLSA Panel, increasing the number of those qualified to mediate FLSA matters. In 2016, 27 FLSA cases (12% of all referrals) were referred to mediation. In 2017, 147 FLSA cases (45% of all referrals) were referred to mediation. The ADR Administrator credited the ability to meet the increased demands to “efforts by the ADR Department to increase the number of mediators on the panel qualified to mediate FLSA matters.” Tracking the data over the subsequent years, FLSA cases remain the case type most referred to mediation and have consistently maintained high settlement rates.

Improved outcomes reflected in increased settlement rates and ADR initiatives are two ways data has supported positive outcomes in court-annexed ADR. However, a more direct reflection of the positive effect of court-annexed ADR lies in the feedback collected from those who have participated in the process. The Program has collected data from parties who have participated in court-annexed mediation since 2015. A primary goal of this effort was to ensure quality of the process.

When a mediation is concluded, parties are asked to complete a mediation evaluation for the Program. Parties are specifically asked to reflect upon whether the mediation session was helpful (“Helpful”); if they would recommend the mediator to other litigants (“Recommend Mediator”); if they thought the mediator was well prepared (“Well Prepared”); if the mediator helped the parties engage in a meaningful discussion of the case (“Engaged Parties”); and if they were satisfied with the mediators knowledge of the law (“Knowledge of the Law”).

Participant Evaluations

Metric

Year: 2016

(72 evaluations)

Year: 2017

(429 evaluations)

Year: 2018

(366 evaluations)

Year: 2019

(453 evaluations)

Year: 2020

(540 evaluations)

Year: 2021

(560 evaluations)

Helpful

72%

79%

78%

81%

80%

78%

Recommend Mediator

93%

91%

93%

90%

93%

93%

Well Prepared

87%

95%

96%

94%

92%

94%

Engaged Parties

80%

83%

82%

81%

81%

80%

Knowledge of the Law

83%

93%

94%

93%

88%

95%

Data shows consistent positive feedback from parties about their mediation experience. It should be noted that a portion of this feedback comes from parties who did not settle their case in mediation, but still provided positive scores. Overall the data shows that parties who participate in the mediation process find it to be a positive experience, regardless of whether their case settled.

Historically, positive outcomes in court-annexed ADR were thought to be captured in settlement rates. And while this may be one metric, the data also supports positive outcomes in the creation of court-annexed ADR programs to meet the growing needs of the court. Finally, data can expand the definition of positive outcome beyond settlement rates as parties report positive experiences with court-annexed ADR even in the absence of settlement making them more likely to continue to participate in such programs in the future.

    Danielle Shalov

    United States District Court for the Eastern District of New York

    Danielle Shalov, ADR Administrator for the United States District Court for the Eastern District of New York. Danielle B. Shalov, Esq. received her BA, magna cum laude, from Kenyon College and her JD, magna cum laude, from The Benjamin N. Cardozo School of Law. She is a member of Phi Beta Kappa Society and Order of the Coif. Ms. Shalov practiced as a civil litigator and criminal defense attorney before becoming a law professor. She ran mediation clinics and programs for two New York Law Schools and created the Representation in Mediation Clinic at the Elisabeth Haub School of Law. Ms. Shalov is a mediator and mediation trainer approved under Part 146 by the New York State Unified Court System’s Office of ADR Programs for both Initial and Advanced Mediation Training. She was the Administrator of the Mandatory Mediation Program at the Appellate Division, Second Department in New York State Supreme Court before joining the United States District Court for the Eastern District of New York as their ADR Administrator. Ms. Shalov can be contacted at  [email protected].

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