There is a new statewide initiative that could help personal injury cases to settle faster, reducing the time and money spent litigating. Recently, New York implemented new procedures, referring personal injury cases to proceed to alternative dispute resolution (ADR), such as mediation or arbitration. The court system will direct all personal injury cases to participate in ADR. This program has been informally nicknamed, “Presumptive ADR.” The motivation for the change is to narrow the number of lawsuits pending in the courts by referring disputes to ADR in hopes of expeditious settlement. The mediation requirement is expected to reduce the costly and timely expense of litigation in resolvable cases. With an overwhelming number of cases on the court calendar, the statewide initiative anticipates a reduction in trials and pre-trial litigation.

Previously, litigation and ADR were separate forums. ADR was underused in the court system. Once a lawsuit was filed, ADR was utilized on the rare occasion when all parties agreed to participate. Judges were able to suggest individual cases partake in ADR where a resolution appeared promising. For the most part, cases advanced through the litigation process until they either settled or proceeded to trial. In the past, judges could merely suggest ADR; now, judges will have the authority to order it. 

The Chief Judge’s Advisory Committee has issued an Interim Report and Recommendations concerning presumptive ADR. Such recommendations encourage each jurisdiction to adapt and enforce its own guidelines. The court-sponsored mediation programs will impose mediation early on in the pre-trial litigation procedure.  Suffolk and Nassau counties are striving to structure presumptive mediation as the next step after the preliminary conference (the first court conference once a lawsuit is filed).  Currently, in Suffolk County, if a Bill of Particulars has not been served prior to the preliminary conference, the court will direct whether the case proceeds to an IAS part or to ADR. There are opt-out elections. Meaning, personal injury cases will proceed to ADR will be decided at the first court appearance.

Personal injury cases that proceed to ADR will have limited document discovery with a shorter time period for exchange. Personal injury cases that are assigned to ADR will limit discovery to targeted documents. The ADR part directs that documents are exchanged between the parties within 20 days, which is considerably less time than would be traditionally permitted.  Further, the plaintiff’s deposition must be held within 90 days, which is speedy. 120 days after assignment, a settlement conference will be scheduled. Unsuccessful cases will be redirected back to court. 

At this juncture, while Suffolk County is optimistic, the initiative is brand new and its true effect has not yet been witnessed. Here at the Law Offices of Jennifer G. Tocci, we’re enthusiastic to advocate for our clients during presumptive ADR. 

For a free consultation, call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.

353 Veterans Memorial Highway, Commack, New York  11725 

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