Alternative Dispute Resolution and Mediation

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Alternative Dispute Resolution and Mediation

Alternative Dispute Resolution

Recently, New York State moved to “presumptive ADR” in civil law cases. This means that many legal matters such as family law cases, landlord-tenant issues, and disagreements involving money may first be directed to ADR to see if they can be resolved by the parties. The goal of presumptive ADR is to change the way problems are handled in the legal system

In this section, you will find information and resources about presumptive ADR and mediation.

What is Alternative Dispute Resolution (ADR)?

ADR is another way of dealing with conflicts and disagreements. Most legal matters are handled through the formal court process (with judges, attorneys, formal rules of law, etc.). ADR is another way of settling your case without a trial or a judge deciding what happens. ADR includes mediation, case conferencing, neutral evaluations, and arbitration.

ADR is usually less stressful, less expensive, and problems are resolved faster. Also, people are usually more satisfied using ADR. This is because ADR gives you a chance to share how you feel and be more fully heard than the traditional court process.

What is Presumptive Alternative Dispute Resolution (ADR)?

Presumptive ADR is a way that cases are handled in court. It means that when you file a case with the court, it may first be referred to ADR instead of going directly to a judge. Presumptive ADR gives you a chance to settle the case through communication instead of through the formal court process.

What is mediation?

Mediation is when people discuss their problem and settle their disagreement with the help of a mediator. It is the most common type of ADR.

The mediator is a trained problem-solver. They do not take sides or decide what should happen with your problem. They help you communicate with the person you are having the legal problem with so that you both can discuss options and explore solutions.

Some things to know about mediation:

  • Mediation is voluntary. It cannot happen unless you and the other person agree to it.
  • What happens during mediation is confidential. This means the mediator cannot tell anyone else what is said during mediation.
  • When you and the other person decide on a solution, the mediator can write the agreement for you.

I really wanted my day in court. Why should I agree to mediation?

You do have the right to have your case heard by a judge. But the traditional court process can be long and expensive. Also, the legal system is adversarial – one side against the other in a legal fight. And there is no guarantee that you will be happy with the judge’s decision.

In mediation, you get to decide what is important to talk about and have the chance to explain what you want and how you feel. Because mediation encourages communication, relationships can also improve. Most people are able to reach an agreement in mediation that they are happy with. If you are not able to reach an agreement, you have the option to proceed with court.

Below are some of the reasons why you may want to use mediation: 

Developed by Bridget O’Connell, ADR Coordinator, NYS Unified Court System

What kinds of cases are mediated?

Mediation can be used to handle many different types of cases. These can include:

  • Divorce
  • Child custody, visitation, and support
  • Landlord-tenant matters
  • Workplace issues
  • Small claims court matters
  • Matters with neighbors or with the community
  • Elder law matters

Mediation is NOT appropriate for cases where one person has significant power or control over the other person. This includes:

  • Intimate partner violence
  • Family violence
  • Child abuse

Is mediation free?

Community Dispute Resolution Centers  (CDRC) are funded by the NYS Unified Court System to provide free or low-cost mediation services. They can also provide interpreters for free.

How long is mediation?

It depends. Most people reach an agreement in one 2-hour mediation session.

Do I need a lawyer if I go to mediation?

You don’t need a lawyer when you go to mediation. But you may want to talk to a lawyer before you go to mediation to know your rights and what you are entitled to. You may also want to talk to a lawyer before you sign the written agreement.

Lawyers can attend mediation if both sides agree to this.

Do I have a right to say no to presumptive ADR?

Yes, you have the right to say no and opt-out of presumptive ADR.

I want to use mediation, but the other person doesn’t. What can I do?

No one can be forced into mediation. If you or the other person involved in the disagreement do not agree to mediation, then the matter proceeds formally in court.

But even if the other person doesn’t want to go to mediation, you can still go to a Community Dispute Resolution Center in your community for help. They can offer Conflict Coaching. This is a confidential meeting between you and a trained coach. The coach can help you in the following ways:

  • Increase your understanding of the conflict or problems
  • Learn some key communication skills
  • Make decisions about future interactions with the person you are having problems with

Are agreements reached during mediation legally binding?

If you are referred to mediation from a court and reach an agreement, the mediator can write the agreement. When both sides sign the agreement and submit it to court, it becomes legally binding. That means it can be enforced by law.

What do I do if the agreement isn’t working?

If the agreement isn’t working or if things change, you can go back to mediation and revisit your agreement, or you can go back to court.

If you submitted a written agreement to court, it may say what happens if the agreement isn’t being followed.

Can I go to mediation without a court referral?

Yes, you can. You can contact a CDRC anytime you have a conflict or disagreement that you would like to resolve before filing a case in court.

You can find more information about Court Connected ADR Programs on the NY Courts website.

Developed with assistance from Gayle Murphya, Esq, Center for Resolution and Justice and Daniel Kos, NYS Unified Court System

Updated 3/7/23

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