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
