Mediation in Surrogate’s Court: A Tour of NYS Courts & Procedures – Part I

Mediation in Surrogate’s Court Part I:

A Tour of New York State Surrogate’s Courts and their Procedures – 9th Judicial District

This series is a panel discussion on the following topics:

1.    The structure of the Court’s mediation program

a.    Is mediation presumptive or voluntary?

b.    What kinds of cases are referred to mediation?

c.    Are there types of cases not referred to mediation?

d.    Are there certain family dynamics which will cause the court to not refer the case to mediation? 

e.    When are cases referred to mediation?

i.    After an Answer or Objection is filed or later in the proceeding? 

f.    Who are the mediators? 

i.    Court Staff;

ii.     Part 146 Roster Mediators 

iii.    outside organization

g.    How to get on the Court’s Roster (if applicable)

h.    Are there fees associated?

i.    Who pays? 

ii.    Is there are certain time allotted free of charge? 

i.    Who is the ADR Coordinator in the Court? 

j.    Are there any forms or procedure manuals that can be shared? 

2.    The Court’s expectations from the parties:

a.    Cooperate and timely schedule mediation; and 

b.    Participation in good faith. 

3.    The role of the attorney in mediation

a.    The attorney reminds the client that this his or her own dispute and lets them lead the way; 

b.    Attorneys maintain a calm, supportive, cooperative demeanor and demonstrates commitment to the process;

c.    Attorneys assist in framing the issues to be resolved;

d.    Attorneys remind their clients that kindness and empathy reciprocate and word choices matter; 

e.    The attorney provides information to his or her client about the benefits and risks of specific settlement proposals;

f.    The attorney acts as an agent of reality, helping the client to balance the risks of accepting or rejecting settlement offers and the potential risks of proceeding with further litigation;

g.    Attorneys assist  in managing the process by asking for breaks, for opportunities to speak privately with the client or for a private discussion with the mediator;

h.    The attorney summarizes the ongoing discussions or clarifying matters that are confusing or where a miscommunication is preventing a constructive dialogue; 

i.    The attorney keeps the client focused on the current discussion, the information presented and options for settlement; and 

j.    The attorney provides structure to the issues agreed upon by the parties while looking towards the workability of any agreement in drafting settlement documents. 

4.    The role of the Guardian Ad Litem

a.    Does he or she participate? 

b.    Is the ward present? 

c.    Duty to confer with ward?

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