New York has established for the first time statewide guidelines for the qualifications and training of mediators and neutral evaluators who are called into cases by judges seeking to encourage out-of-court settlements.
Chief Administrative Judge Ann Pfau issued the new rules earlier this month with the approval of the Administrative Board of the Courts, which is comprised of Chief Judge Judith S. Kaye and the presiding justices of the four Appellate Division departments.
The guidelines require that mediators who want to make the rosters from which judges make assignments must have at least 24 hours of training in basic mediation skills and at least 16 hours of additional training in specific mediation techniques in the types of cases referred to them.
The rules also limit those wanting to be assigned as neutral evaluators to those who have practiced law or served as judges for at least five years with "substantial experience" in the kinds of cases referred to them.
Mediators seek common ground between adversarial parties on which mutually acceptable terms can be reached for settlements. Neutral evaluators gather evidence from the parties and give an opinion about what the parties can expect as the outcome if their dispute goes before a court.
The guidelines require continuing legal education of at least six hours every two years for both mediators and neutrals.
Establishment of the guidelines represents a coming of age for alternative dispute resolution (ADR) and is acknowledgement of its growing use by courts in New York, Pfau said.
"We thought that the ADR program in this state had reached a point of maturity and acceptance where it made sense to have uniform standards for all mediators in the state," she said in an interview. "I think this will be very helpful in continuing to develop this very vibrant ADR program that we have."
Until now, administrative judges have set the qualification requirements for the mediators and neutral evaluators on court rosters. Daniel M. Weitz, ADR coordinator for the Office of Court Administration, said many of the "several hundreds" of neutrals on the rosters already meet the requirements but that others may be some hours short and will have to receive more training to stay listed.
The qualifications for court-appointed mediators are similar to those recommended by an advisory group to the OCA. A member of the group, Simeon Baum of Resolve Mediation Services in Manhattan, said Wednesday that training sessions for would-be mediators typically last for three days or about 24 hours total.
"I think this is further evidence that ADR is here on the scene," said Baum, the first chairman of the New York State Bar Association's newly formed Section on Dispute Resolution. "It shows a greater level of sophistication in recognizing that people are going to be engaged in a refinement of mediation practices."
Baum said that the popularity of ADR grew starting in the 1990s as parties, especially in commercial and matrimonial cases, began to see its success at reaching settlements in sometimes-acrimonious disputes and avoiding costly litigation.
Court-appointed arbitrators have their own qualifications rules under the state courts' Community Dispute Resolution Centers Program and are not covered by Pfau's decree. Arbitrators are most typically called in to decide small claims cases, according to Weitz.
The new guidelines also do not apply to private mediators or neutrals called in by parties in disputes outside the aegis of the courts.
"It only has bearing on the courts, but it might have an indirect impact on the broader mediation field because people will start to see standards being set," Baum said.
Pfau's rules also recognize the potential for blending the roles of mediator and neutral evaluator, a source of some controversy in the ADR field.
Lela P. Love, director of the Cardozo Mediation Clinic at the Benjamin N. Cardozo School of Law, said it has long been in dispute whether the role of mediator, which entails acting as a facilitator of a settlement, can be performed along with the more disinterested functions of a neutral.
The new rules stipulate that the same neutral in the same case can perform the two roles, provided that person meets the training and background requirements of both mediator and neutral evaluator.
"Frankly, that issue has never truly been resolved, but it is a little resolved by this rule," Love said Wednesday. "I think New York is going to become a leader by the promulgation of this rule."
Love was also a member of the OCA advisory committee on professional qualifications and other ADR issues.
If the courts are going to put their imprimatur on ADR by maintaining rosters of neutrals, it is also in the courts' best interests to set standards for their qualifications and continuing education, Love said.
"It should be good, it better be good, if it is a public system," she said. "The education and training of neutrals is a critical pillar for ensuring quality."
The Commercial Division is most apt to maintain rosters of qualified ADR practitioners, especially in New York, Westchester, Nassau and Erie counties, said Weitz. Some Family Courts also maintain rosters, including New York City's, and often refer child custody and visitation disputes to mediation.
Under Pfau's rule, the Unified Court System will set criteria for training programs.
"It is not our intention to necessarily remove people who are currently serving on rosters if they are in need of some additional training," Weitz said Wednesday. "Our office will sponsor training throughout the near future for those interested."
Nothing in the rules exempts nonattorneys from acting as mediators, as long as they do not function in the dual role of neutral.
Baum said he knows of several excellent mediators who are not attorneys, though he said the vast majority are. In fact, Baum said he has pondered long and hard about the skills needed to effectively resolve disputes between others.
"I think there is an interesting question: What makes a good mediator and whether that is something that comes from personality or character or years of experience, judgment, a certain tact, a sense of humor -- all the various personal skills that make for a good mediator," Baum said. "Some of it comes from life experience and not necessarily through a training course."
Still, he added, "It definitely can't hurt to spend more time in training."
