By Patrick Connelly, originally published in Buffalo Law Journal, Buffalo Business First on Aug 19, 2019, 12:38pm EDT.

A Different Way to Hash Things Out

Phillips Lytle LLP partners Kenneth Manning, James Donathen and Kevin English and attorneys elsewhere prep for big year in alternative dispute resolution

Phillips Lytle LLP attorneys Kenneth Manning, James Donathen and Kevin English. Phillips Lytle LLP attorneys Kenneth Manning, James Donathen and Kevin English. (JOED VIERA)

As with many things, the late Yogi Berra may have said it best.

With a reinvigorated approach that’s spreading throughout New York courts, the future of alternative dispute resolution ain’t what it used to be.

That ideology has shifted in the last two decades, according to attorneys.

“You wouldn’t see very many big cases be mediated (back then),” said Kenneth Manning, partner at Phillips Lytle LLP in Buffalo. “They might get settled along the way by the parties, but you didn’t see anybody really meaningfully intervene to try to get it done (through ADR).”

Manning has practiced for more than 40 years and, in commercial litigation, serves as an arbiter and mediator.

Some federal courts for years have had mandatory mediation programs, he said.

“That may be the case in (our) state soon,” Manning said. “Even for those (cases in which) it’s not mandated, you’ll see clients suggest it, which is a relatively new phenomenon.”

ADR is on the verge on becoming more widespread in the New York State Court System. A desire to revitalize the system’s commitment to ADR was announced in 2018 by Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks.

The courts found various resolution approaches were underutilized but worthwhile and efficient as a means to eliminate case backlogs, trim costs and enhance justice.

“That’s how the whole notion grew,” said David Brock, senior counsel at Kavinoky Cook LLP.

Commercial litigators originally looked for ways to bring cases through the system faster and at a lower cost and settled on the idea of arbitration, he said.

Ideas to resolve matters more efficiently have become commonplace around the country and the state system wants to see more of that in New York. It released a report in February and, since, efforts to increase the use of ADR in a multitude of facets have started to be implemented in all types of courts.

The chief judges set out to build on already-established programs to make early resolution to civil disputes a focus.

Paul Buchanan, senior counsel at HoganWillig and a former judge, said ADR could have a dramatic improvement in some realms of family law and greatly expedite divorce proceedings.

“(The case is) resolved on your timetable (and) you can set up your own rules of evidence and rules on discovery … and make it less emotionally disruptive,” he said. “The biggest thing in divorces is the emotional impact on the parties. They just want to move on with their lives … when they’ve already made the decision to (split).”

ADR is often the appropriate manner in which a case should be settled rather than it being prolonged in court, Buchanan added.

DiFiore echoed that sentiment, calling ADR an effective supplement to the civil justice system when used appropriately.

“When mediation was in its early days, I think a lot of us wanted to avoid it,” said James Donathen, a partner at Phillips Lytle. “We viewed it as a digression that took a side road that took considerable time to prepare and seldom resulted in any type of result that benefited the client.

“But I think now there’s a greater acceptance in the (profession) of mediation and mediators are much more skilled. I find these days mediation is becoming just another tool in the toolbox.”

Future of ADR

Plans for ADR infrastructure in civil courts were asked by the New York State Court System to be put in place by Sept. 1.

Recommendations to bolster adoption of ADR included an expansion of funding, promotion of uniform rules, regular evaluation of what works and what doesn’t and education for attorneys, court staff and the general public.

Locally, Child and Family Services of Erie County Inc.’s Center for Resolution and Justice received a grant of nearly $700,000 from the state Office of Victim Services to boost how it helps people in Western New York’s eight counties, director Julie Loesch said.

That grant coupled with other sources of funding helped the center expand services and relaunch extinct programs such as Community Dispute Resolution in Buffalo City Court.

Mitchell Banas, member at Bond Schoeneck & King PLLC, said he’s seen ADR develop from somewhat of a novelty early in his career to it being encouraged by many courts in the last decade.

“It’s certainly more prevalent now,” said Banas, who serves as a mediator in federal court.

“It’s definitely a nice change of pace (to regular practice), and what it really involves is the application of the same skill set in a very different context,” he said. “One of the advantages of mediation is you have the option to decide your case early and therefore more cheaply and quickly.”

Cases settled via alternative means offer lawyers a different sort of challenge than what they’re accustomed to, the attorneys said.

“It appeals to a different set of instincts,” Manning said. “For those who are client-oriented, (when) you’re trying to get the client to a realistic goal one way or another, it becomes more fascinating, I think, to try and find a way to get the client to where they need to get.”

Choosing the right path

An attractive aspect of ADR for many in the business world is that it’s private and parties are typically bound by nondisclosure agreements, said Aaron Rubin, associate at Kavinoky Cook.

“Unlike a court proceeding where everything is on the record, there’s very frequently nondisclosure requirements tied in there,” he said.

Still, mediation may not always be the right course depending on the case or client.

“If a client doesn’t want to mediate a dispute, you shouldn’t spend your time doing it,” Manning said. “Mediation implies a willingness to consider, reconsider and evaluate positions fairly objectively. … If the client isn’t in an emotional, financial or business posture to mediate, you shouldn’t spend anybody’s time on it. You’re going to get an angry client out of it.

“If they don’t want to mediate, you pushing (them) to mediate is not going to help.”

And that’s the right perspective, said Kevin English, also a partner at Phillips Lytle.

“If the goal is to truly be there in a good-faith way to resolve the case, if the client isn’t in the right frame of mind (it’s not the best route),” he said. “The timing is important and the case has to be postured properly for the mediation to work.”

The speed at which a case will be resolved is viewed as an advantage to many clients, Buchanan said. He said that occasionally it can be worthwhile for clients to receive news of litigation not in their favor sooner than later.

Other times, he said a mediated case may play out differently than he expected at the outset.

“That’s the beauty of mediation,” Buchanan said. “A lot of times the issue that brings the people to the table is not the real issue between them; there are underlying issues … that are really at the heart of their disagreement.”

For many people, decisions that come through ADR are easy to accept even if they’re in the opposition’s favor because they’ve had an opportunity to state their case.

“One thing I’ve learned through all these years is that if people feel like they’ve been heard, they’ll accept the outcome,” he said. “They just want to tell their story and mediation allows them (to do that).”