AN OVERVIEW OF ADR PROGRAMS WITHIN THE NEW YORK CITY-BASED COURTS OF THE SECOND CIRCUIT, WITH A FOCUS ON MEDIATION COMPILATION AND INTRODUCTION BY SIMEON H. BAUM AND HON. BERNARD J. FRIED hen members of the federal bar think of the Second Circuit courts based in the New York City area, large, complex, commercial, or historically groundbreaking litigation is likely the first thing that comes to mind. New York, as an urban melting pot, a booming commercial center, and a city of more than 8 million people, has spawned a mass of civil and criminal litigation Wover the last two and a half centuries. As a gateway to America and a major port, local federal matters have included major admiralty cases, bankruptcies large and small, and immigration matters. As the heart of the securities industry hosting major financial exchanges, New York has generated a plethora of significant securities matters within the courts of the Second Circuit. The Second Circuit has produced a wide range of decisions and judgments of national consequence on intellectual property, freedom of expression, freedom of the press, terrorism, ship sinking, mob crime, espionage, and more. Yet, for more than the last quarter century, the federal courts in in a sidebar by Peter Woodin of JAMS, Mediation, Arbitration, and ADR New York have also been the scene of dispute resolution alternatives to Services, who was actively involved in organizing and providing training litigation—mediation, arbitration, and early neutral evaluation. Shortly for the panel of mediators who served in the Superstorm Sandy effort. after the issuance of the Civil Justice Reform Act of 1990, both the Southern District of New York (SDNY) and Eastern District of New York Acknowledgements (EDNY) district courts developed pilot programs, adding to existing Before hearing from these contemporary and authoritative voices, we alternative dispute resolution (ADR) efforts, to foster the use of ADR in acknowledge a number of people who were instrumental in the growth the courts. ADR programs were already well underway in the Court of and development of the ADR programs in these courts over the last Appeals for the Second Circuit, where a case conferencing program had quarter century and then reflect on the value of these processes. been in place since 1974. For years, the face of the Second Circuit’s CAMP program was Senior Since the inception of active efforts in the Second Circuit in the Staff Counsel Frank J. Scardilli. While the CAMP program counsel mid-1970s and the SDNY and EDNY pilot programs of the early were referred to as “mediators,” initially two features distinguished 1990s, tremendous strides have been made within the courts of the the conference from a full-blown mediation: counsel typically attended Second Circuit in providing litigants with alternatives to litigation without clients, and the mediator was expected to give fairly direct as an effective, efficient, and high-quality means of resolving their feedback on his or her views of the parties’ cases. Scardilli, a Yale Law disputes. The following compilation presents contemporary voices graduate and Fulbright Scholar with a fascination for logical positivism from the federal courts housed in the New York City area on their and international affairs, was a fixture in CAMP conferences for decades. respective ADR programs. First we hear from Chief Circuit Court He was later joined by Lisa Greenberg in this role. Today, the CAMP Mediator Kathleen Scanlon and Circuit Court Mediator Dean Leslie on program is fortunate to have experienced mediators Kathleen Scanlon the approach they take to mediations that come into the civil appeals and Dean Leslie available to conduct its conferences. management program, affectionately known as CAMP. Next we hear Commencing in the 1990s, and running for two decades, George from Chief Judge Colleen McMahon on the ADR programs of the SDNY O’Malley, the ADR administrator for SNDY, was the face of the court’s and its focus on quality. Then Chief Judge Dora Irizarry and Magistrate ADR office. A mediator entering his office would find him dapperly clad JudgeWinter Robert M. Levy provide us with a variety of insights into the in suspenders and bow tie, with jars of candy available on his desk. breadth, scope, and uses of the ADR programs in the EDNY. Included The chief judges of the SDNY were tremendously supportive of the in their2018 remarks is appreciation for the ADR panel that mediated more ADR program, as were Judges Harold Baer and George Daniels, who than 1,000 Superstorm Sandy matters in roughly one year. And, finally, were responsible for oversight of the court’s program for years. As a an insider’s view of the Superstorm Sandy mediation program is offered consequence, the ADR office had further, very able full-time support from Page 2 August 2018 • THE FEDERAL LAWYER • 77 Maria Sclafani, who knew every mediator on the panel, as well as from presents a golden opportunity for ADR (i.e., mediation). Why not Phyllis Adamik and Stuart Cohn. Today, the ADR program continues to upon the receipt of such draft complaint, suggest that the parties flourish under the supervision of Mediation Director Rebecca Price, who participate in mediation, rather than shutting down the process has a deep knowledge and appreciation of the nuances of the mediation and saying, “We will meet you in court”? If there are statute process based on her prior experience as a mediator and mediation of limitations issues, a tolling agreement may be appropriate. trainer. Following this path to pre-litigation mediation has multiple From the early 1990s, again for over two decades, the EDNY ADR advantages: The dispute does not become public, the parties are program ran through the tireless efforts of its ADR Administrator Gerald often less entrenched, expensive and disruption discovery has not P. Lepp who did whatever it took to move cases into mediation and begun, the overall attorney’s fees and costs will be certainly less, promote the program and its panel of mediators. He was greatly helped, and frequently the dispute is satisfactorily resolved. Finally, while as well, by the support of the EDNY chief judges and by the oversight of I understand that one side is reluctant to suggest mediation for the visionary Magistrate Judge Robert M. Levy. Today, the EDNY ADR fear of seeming “weak,” in my experience, that is an unnecessary program is fortunate to have Robyn Weinstein as ADR administrator. fear and should not be an impediment to seeking resolution of the Weinstein came to the EDNY with a background in teaching and training dispute without a court filing. mediators, as well as with deep mediation experience. With Judge Fried’s comments in mind, you are now invited to hear Mediation Benefits from each of our local federal courts on their ADR programs. Before turning to the contemporary voices from the court, it might be helpful to consider the benefit of mediation. Promoters of mediation tend Simeon H. Baum, litigator and president of to observe that it offers parties substantial savings in time and cost of Resolve Mediation Services Inc. (mediators.com), litigation—which are certainly helpful and of concern to the court. Yet is a former member of the FBA board of directors, there is much more fundamental value offered by the mediation process. former chair of the FBA’s ADR Section, and former president of the SDNY Chapter. He has conducted Mediation provides a compassionate neutral who can empathize—on over 1,000 mediations since 1992, and has three everyone’s side—while remaining impartial. Mediation is a confidential times been selected as Best Lawyers “Lawyer of the forum where nothing is irrelevant. Parties have the chance to consider Year for ADR” in New York City. He teaches on the ADR faculty at Benjamin N. Cardozo School of Law what might happen if the matter does not get resolved (i.e., the risk and and is a frequent speaker and trainer on ADR. cost of litigation). Beyond this, it is fully legitimate to address emotions, values, interparty dynamics, principles, stories and a range of other Hon. Bernard J. Fried (Ret.), JAMS mediator and arbitrator, has over 32 distinguished years on clusters of meaning. Parties may deepen understanding and engage the New York state bench, first in the New York in deal-making in a forum that gives them ultimate control over the City Criminal Court, later in the Bronx County outcome of the process. They may develop deals tailored to meet their Supreme Court, and most recently in the New York County Supreme Court. In addition to his judicial needs and capabilities, which account for ambiguities, uncertainties, and service, Justice Fried has contributed to a variety the gray areas in their respective senses of fairness and fact. Mediation is of legal education programs, including the Federal a forum for the integration of the norms of justice and harmony—where Bar Council Winter Meetings, the International Moot Courts in The Hague, and the Asia-Pacific flexibility and creativity have a place alongside deliberative decision- Economic Cooperation Meeting in Singapore. making, pragmatism, and humanism. An ideal insight into the value and potential of mediation, even before it hits the courthouse steps, can be gained from former New York Commercial Division Judge Bernard J. Fried, who is now a mediator and arbitrator at JAMS in New York. Here is what Judge Fried has to say: There is no need for me to restate the obvious importance and tremendous value of mediation in not only commercial litigation, but in all types of litigation. However, what is often overlooked is its value and importance pre-litigation, especially in commercial cases. As a judge sitting in the Commercial Division, of course, mediation was conducted post-filing, and I came to the opinion, certainly not unique, that the sooner the mediation commenced, usually the better the outcome.