From the Great Plague to COVID-19, Pandemics Have Upsides

From the Great Plague to COVID-19, Pandemics Have Upsides

1.5.2021

By Lisa M. Denig

In 1665, the Great Plague was ravaging its way across London, forcing Cambridge to send all of its students home. While waiting out the pandemic at his mother’s estate, a young Sir Isaac Newton formulated his theory of gravity. Thus, it was a pandemic and an early form of ‘social distancing’ that led to this great discovery.

The same can be said for the year 2020 and ADR in the New York State Court system. This past year the court system made incredible strides in mediation in New York City courts and we have a pandemic and social distancing to thank for that.

If not for COVID-19, the court system might have never pivoted to virtual court appearances and an even heavier reliance on judicial settlement conferences. The havoc that the virus wreaked is also at least partly responsible for encouraging attorneys, litigants and judges—who previously may have been resistant—to try mediation.

The growth in mediation has been evident in New York City, most notably in the Bronx. The Bronx Commercial/PI Mediation Program, initiated by Administrative Judge Doris Gonzalez, began Sep. 8, and more than 100 cases have been sent to mediation since. The roster  has grown to over 80 mediators. More and more judges in the Bronx are starting to participate; its success has spawned copycat programs across the state.

Another illustration of the explosion in mediation can be found in the Small Claims Court. Faced with an enormous backlog, Administrative Judge Anthony Cannataro began a presumptive mediation program, directing that all cases filed before the pandemic were to be presumptively sent to mediation before a court date was scheduled.

Since the summer, all five Small Claims courts in New York City have collectively sent more than 550 cases to mediation. This enormous undertaking could not have been possible without the commitment of the Community Dispute Resolution Centers, law school mediation clinics and a large army of volunteer mediators. These groups have combined to provide free mediation services for all small claims litigants.

These new programs join the ranks of well-established mediation efforts in the New York County Commercial Division and the matrimonial courts in  Queens and Kings counties. Due in large part to the professionalism and tech-savviness of the mediators, these programs were able to seamlessly pivot to virtual mediation.

Another hugely successful mediation program is the Bronx Surrogate Court. Surrogate Nelida Malave-Gonzalez began a  mediation program early in 2020. With a small but expert roster of trusts and estates mediators, the program has tackled issues designated by Surrogate Malave-Gonzalez as amenable to mediation. This program also works hard to pair relatively new mediators with experienced mediators in a very effective mentorship program.

The courts are looking to expand mediation to other areas and counties, as well. In early 2021, we expect to begin two new matrimonial mediation pilot programs in Richmond County and the Bronx. These programs will be limited to eligible cases, but we anticipate that the numbers will only continue to grow as the demand for mediation continues to increase.

Finally, 2020 brought about a new and innovative program in New York County. During the summer, the courts held an Early Neutral Evaluation (ENE) training for more than 80 attorneys who are experts in their fields. ENE, another form of ADR, differs from mediation in that the trained evaluator provides the litigants with a legal assessment of the case in an effort to resolve the case early. This roster is up and running in New York County, and we hope to expand it to other counties in the near future.

So while I may be stretching the analogy a bit to say that the progress and use of ADR in the courts in 2020 is akin to the discovery of gravity in 1665, I think it is at least fair to say that we are moving forward at lightning speed in our implementation and creation of new ADR programs. Out of crisis often comes innovation and invention, and we have seen that in the realm of ADR in the past year. I look forward to an even greater use and expansion of these types of programs in 2021.

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Denig is the special counsel for ADR Initiatives for the Courts Inside NYC.