Of Pandemic and Perseverance: NYCLA’s ADR Committee Makes Lemonade Out of Lemons in 2020

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Of Pandemic and Perseverance . . .  

NYCLA’s ADR Committee Makes Lemonade Out of Lemons in 2020  

 

While there was tremendous conflict and disagreement throughout 2020, it was anything  but a year of perfect vision (even for ophthalmologists and optometrists). Among many  challenging occurrences, the deadly coronavirus pandemic, protest-related violence resulting from  deplorable civil rights violations, natural disasters, and all-too-regular political shockwaves— ultimately culminating in unprecedented siege and sorrow at the Capitol—definitively made 2020  humanity’s “year of the lemon.”  

Nonetheless, the leadership and members of the New York County Lawyers Association  (“NYCLA”) and its Alternative Dispute Resolution (“ADR”) Committee pressed on through it all,  embracing and adapting to constantly-changing circumstances while managing to sponsor no less  than nine meetings or Continuing Legal Education (“CLE”) programs. All but one of these events  occurred online from March through December of the year that no one will soon forget.  

February 4, 2020, marked that one in-person exception, a groundbreaking CLE event  entitled Christian, Islamic, and Jewish Dispute Resolution in the New York Metropolitan Area,  which involved an innovative exploration of faith-based dispute resolution processes. For close  to three hours, four masters of Jewish, Christian, and Islamic dispute resolution—Prof. Ronald J.  Colombo, Pastor P. Brian Noble, Imam Dr. Mohammad Qatanani, and Rabbi Shlomo Weissmann—enthralled a hybrid live and virtual audience of approximately one-hundred people  with reflections, stories, insider’s perspectives, and difficult-to-obtain information on how the  three Abrahamic faiths have approached dispute resolution through the centuries to the present day. Accompanied by a sprinkling of Latin and Arabic phrases, delicious Middle Eastern  refreshments from Manhattan’s Pita Express restaurant, and keen answers to questions prepared  in advance by Committee members, the panelists gave one and all an educational, mystical, and  simply spectacular evening.  

About one month later, COVID started spreading rapidly in New York, and the downstate  region became shrouded death and despair. Nonetheless, on March 12, 2020, the Committee held  a hastily-arranged telephone-only meeting at which the Hon. Aprilanne Agostino, Clerk of Court  for the Appellate Division, Second Department and Dalia Bisnauth, an Assistant Clerk at the  Second Department, provided valuable information on the Department’s Mandatory Mediation  Program (“MMP”), including but not limited to MMP background and operations, case resolution  statistics, program development objectives, and specific challenges presented by appellate-level mediation such as mediator compensation, case management/screening, and entrenchment of the  parties. Notwithstanding the dire circumstances, it was an incredible honor for the Committee to  host Mmes. Agostino and Bisnauth at this meeting, which served to pave the way for a special November CLE presentation, discussed below, involving several of the Second Department’s Special Master mediators.  

Thereafter, the Committee became an Online Dispute Resolution (“ODR”) powerhouse  largely on account of Vice-Chair Timken’s prescience and keen interest in developing ODR  initiatives. After observing how Pastor Noble from the February CLE event was “Zoomed in” to  the program almost seamlessly, Vice-Chair Timken suggested inviting one of America’s foremost  ODR experts, Susan Guthrie, to lecture on best ODR practices. Ms. Guthrie, who is the  Membership Officer of the American Bar Association’s Section of Dispute Resolution and Co-Chair of its Mediation Committee, thankfully accepted the invitation for a date in May 2020 . . .  and did so shortly before the pandemic exploded.  

Within two weeks of the pandemic’s initial intensification and reports of hospitalizations  and deaths climbing at unprecedented rates, Vice-Chair Timken suggested hosting an online  mediation discussion group every Tuesday afternoon along with Co-Chairs Fladgate and Weinreb.  While supported by NYCLA, this group would be open to anyone from anywhere having an  interest in online mediation or ODR. Mediators Meeting Online (“MMO”) was thus born and had  its first meeting on Tuesday, March 24, 2020. The group met on a weekly basis during the height  of pandemic and has continued to convene monthly since July. Prospective members are always welcome to join MMO by e-mailing Vice-Chair Timken at [email protected].  

 MMO served to literally open the Committee to the world. The group saw participants  attend from across the United States and as far away as Croatia, Poland, and the United Kingdom.  Many of these MMO members are associated with the American Arbitration Association,  Association for Conflict Resolution, Financial Industry Regulatory Authority, International  Institute for Conflict Prevention & Resolution, Inc., National Academy of Distinguished Neutrals,  Nassau County Bar Association, New York City Bar Association, New York State Bar  Association, New York Unified Court System, or the United States District Courts for the Eastern  and Southern Districts of New York.  

One of MMO’s regular attendees, Barbara Wilson, a United Kingdom-based mediator, had  the following kind words to relate:  

I should like to say how very grateful I am to Elan [Weinreb], Nelson  [Timken], and Christopher [Fladgate] for starting Mediators Meeting Online (MMO) in response to the pandemic. I’d also like to commend them for their generosity in continuing these events far longer than they could have originally envisaged. MMO is an excellent resource for ADR professionals. It offers a rolling topic list for discussion where participants can suggest items, and there are ample opportunities in meetings to share any other practice issues in a welcoming and friendly environment. I know of no other international ADR group like this and very much hope MMO will continue. Thank you again.   

With MMO launched, and as April dawned, the ADR Committee had lit a candle of hope  in a sea of despair. While the Passover and Easter holiday season at this time was anything but  joyous, Co-Chair Weinreb, working in conjunction with Co-Chair Fladgate, Vice-Chair Timken,  and NYCLA’s amazing CLE Department, including but not limited to the ever-resourceful and  creative Bari Chase and technical wizard Daler Radjabov, developed two key NYCLA CLE  organizational workflows: (1) using shared Google Sheets effectively as one-stop databases for  planning CLE events; and (2) Zoom CLE planning meetings that would serve as proving grounds  for technically innovative presentation ideas and suggestions. One of the latter, propounded by  Vice-Chair Timken, was a mock mediation video on ODR best practices that would serve not  merely to inform viewers as to those practices but to visually demonstrate them as they were being  performed IRL (in real-life) and IRT (in real-time). Creating such a video thus involved recording  with special screen capture software a separate video of the mock mediation video as the latter was  being filmed.  

After Co-Chair Weinreb successfully produced an initial proof-of-concept video generated  by that software, on May 7th, a special meeting of the Committee was convened to film the “real  McCoy”—a mock, multi-party mediation based upon a 2019 New York State Bar Association  commercial mediation training roleplay. Hosted by Ms. Guthrie, who assumed the role of mediator, the groundbreaking video featured the Committee’s leadership, Committee member  Noson Aharon Kopel, and honored guest ODR practitioners Howard M. Adelsberg, Joanne  Bochis, Ariel Boverman, Donna Buehler, Jess Bunshaft, Elizabeth Donlon, the Hon. Marilyn K.  Genoa, Rachel Gupta, Lauren A. Jones, Emily Malloy, Sheryl-Anne Sastow, William J.A. Sparks,  Lisa Stablier, and Michael Starr.  

On May 20th, the video, which NYCLA has made available to the public at  https://vimeo.com/user27287947/review/420096804/5229c15407, premiered at a well-attended  CLE program hosted by Ms. Guthrie, entitled The Basics of Online Mediation for Dispute  Resolution Professionals (https://www.nycla.org/ItemDetail?iProductCode=CLE_OD_BOMED).  It would simultaneously be the Committee’s first completely-online CLE event and the first of  several more to come.  

In July, having successfully obtained Part 146 approval from the New York State Office  of Court Administration (“OCA”), the Committee’s leadership, working once again with  NYCLA’s CLE Department, organized and sponsored the Committee’s second completely-online  CLE event: Part 146-Approved Advanced Divorce Mediation Training. This two-day, Sabbath friendly, and sold-out weekend divorce mediation course was designed for attorneys previously  trained as mediators wishing to expand their practice into the field of divorce mediation. Led by  Prof. Robert Kirkman Collins of the Benjamin N. Cardozo School of Law and divorce mediation  experts Dorothy Kaldi, Charles M. Newman, and Sheryl-Anne Sastow, it covered the basics of  New York divorce law and explored a systematic approach to applying forty specific mediation  techniques to challenges presented by divorcing couples. The program faculty also addressed how  to aid these couples in reaching detailed consensus on issues regarding the parenting of their  children, equitable distribution of property and liabilities, division of retirement assets, responsibilities for basic and extraordinary child expenses, spousal assistance, health insurance  coverage, tax questions, the strategic timing of divorce, drafting settlement agreements, and how  to obtain an uncontested divorce decree.  

In August, the Committee’s leadership and NYCLA’s CLE Department organized and  sponsored another advanced mediation training, Employment and Wage & Hour Mediation  Training Program (https://www.nycla.org/ItemDetail?iProductCode=CLE_OD_EMMED). Over  August 11, 12, and 14, 2020, thirty-five separate speakers associated with renowned law firms and  long-established ADR providers such as the American Arbitration Association and JAMS— Marjorie E. Berman, Prof. Vivian Berger, Cynthia L. Boyce, Jess Bunshaft, Theo Cheng, Jeanne  Christensen, David Colodny, Gianfranco J. Cuadra, Cyrus E. Dugger, Regina E. Faul, Tana  Forrester, Amanda Fugazy, the Hon. Marilyn K. Genoa, Cherelle Glimp, Elizabeth R. Gorman,  Kristina Grimshaw, Maria Hanford, Prof. Chaumtoli Huq, Garrett Kaske, Troy L. Kessler, Michael  Kreitman, Tiffany Ma, Marijana Matura, Patrick (Mike) McKenna, Raymond Nardo, Rick  Ostrove, Evan Parness, Louis Pechman, Laura Rodriguez, Vivien B. Shelanski, Stephen  Sonnenberg, Michael Starr, Noel P. Tripp, Prof. Robyn Weinstein, Ilan Weiser, Michael D. Yim,  and Giulio Zanolla—provided attendees with substantive information and techniques needed to  manage and resolve employment-related disputes. In addition to providing significant assistance  organizing this superstar faculty, on August 12th, Co-Chair Weinreb and Vice-Chair Timken  joined them when they and Nassau County Bar Association ADR Committee Co-Chairs Jess  Bunshaft and the Hon. Marilyn K. Genoa presented a program segment entitled Virtual Mediation:  Key Issues and Considerations.  

Just about when the proverbial curtains were closing on this program, NYCLA General  Counsel Anthe Maria Bova, recognizing the recent success of the Committee’s CLE programs, requested the Committee leadership’s advice and guidance on revamping NYCLA’s Part 137  Attorney-Client Fee Dispute Resolution Program (“FDRP”). The FDRP, which is partially  operated and supervised by OCA, offers clients and attorneys pro bono mediation and  conditionally-binding arbitration services in lieu of traditional litigation. In certain cases,  participation is mandatory for attorneys as a matter of New York law.  

Up for the challenge, the Committee’s leadership began working with Ms. Bova and  Arianna Diaz, NYCLA’s FDRP Administrator, in developing documents, procedures, and  protocols for transforming the FDRP from a traditional ADR program into an ODR program. At the same time, all worked assiduously with NYCLA’s CLE Department on assembling a  prestigious panel of attorney and non-attorney FDRP practitioners for a blockbuster, two-day arbitration and mediation training geared towards recruiting new FDRP neutrals and preparing ancillary materials.  

That epic training would ultimately take place in December, but there were still other pots  on the proverbial fire in late August and September. These included Starting and Maintaining a  Successful ADR Practice in the Age of COVID-19 . . . and Beyond, a phenomenal two-part CLE  series that focused on the business aspects of ADR/ODR practice. On October 28 and December  7, 2020, expert panelists Joseph Bambara, Jess Bunshaft, Theo Cheng, Greg Cooke, the Hon.  Marilyn K. Genoa, Jennifer Lupo, Charles M. Newman, and Michael Starr covered, among other  topics, qualifications/certification programs, incorporation, networking, mentoring, shadowing, accounting, gaining experience, how COVID has changed ADR practice, confidentiality,  cybersecurity, data security, insurance, and risk management. Their presentations were engaging,  practical, and timely, especially given the backlog in litigation cases in courts across the nation  that the pandemic has created (and which remains a challenge to overcome). 

September 2020 also involved the planning of a two-part “special speakers” series of  Committee meetings featuring national ADR provider leaders. The first of these speakers was the  “original J.Z.”, Jeffrey T. Zaino, Vice President of the Commercial Division of the American  Arbitration Association (“AAA”). On October 15th, Mr. Zaino discussed AAA operations in the  age of COVID, arbitration and mediation opportunities in the New York metropolitan area, and  what the AAA is looking for in prospective arbitrators and mediators seeking admission to its  panels/rosters of neutrals. His presentation was attended by over one-hundred people and was not  only informative but entertaining and well-received.  

September further involved the planning of another groundbreaking CLE event,  Entrenchment Mediation Training: For Mediators in Court-Annexed Mediation Programs, for  November 10, 2020. On that date, Carol Swidler, Assistant Deputy Chief Appellate Court  Attorney for the Appellate Division, Second Department, and Director of its Mandatory Mediation  Program (“MMP”), and an expert panel of six Appellate Division Special Masters—Mitchell  Baker, Pierre F. de Ravel d’Esclapon, David A. Gallo, Philip Goldstein, Barbara M. Lerman, and  Robyn D. Weisman—discussed tips and techniques for handling entrenchment of parties and  counsel in court-annexed mediation programs such as the MMP, getting parties to invest in  mediation from the beginning of the process and stay at the table, breaking the “90 minute barrier”  to compensation established by some court-annexed programs, and getting past impasse to reach  settlement. Once again, attendees found the Special Masters’ presentations to be not only  insightful but practically relevant to their respective ADR practices.  

Two days later—November 12th—marked the second of the “special speakers” series of  Committee meetings. Members and guests of the Committee—approximately 40 people—had the  honor of hearing three prestigious speakers from NAM (National Arbitration and Mediation)—Jacqueline Silvey, NAM General Counsel, the Hon. John P. DiBlasi, retired Justice of the Supreme  Court and Presiding Justice of the Commercial Division, and Richard P. Byrne, Commercial Law  Specialist—discuss NAM’s New York and national operations in the age of COVID and more  generally, ADR in the age of COVID-19, including a trip inside “the mind of the mediator.” The  speakers’ presentations were not only informative but entertaining, timely, and well-received by all.  

Finally, on December 9 and 15, 2020, the Committee and NYCLA’s marvelous CLE  Department capped off the year with the much-anticipated, 15-CLE-credit inaugural arbitration  and mediation training for NYCLA’s FDRP first envisioned in August. Over eighty NYCLA  FDRP prospective neutrals tuned in via Zoom to learn from the Committee leadership and Joanne  Barak, Prof. Simeon Baum, Anthe Maria Bova, Jess Bunshaft, Pierre F. de Ravel d’Esclapon,  Arianna Diaz, the Hon. Marilyn K. Genoa, Prof. Grant Hanessian, Esther Liebert, Prof. Jill Pilgrim,  Harold Rubin, Evan J. Spelfogel, Lewis Tesser, and Randall Tesser about conducting virtual Part  137 arbitrations and mediations, related ODR best practices, diversity, and ethical considerations.  OCA representatives Martha E. Gifford and Amy M. Pontillo and AAA Commercial Division Vice  President Jeffrey T. Zaino also made special guest appearances.  

In addition, for the first time in NYCLA FDRP history, Co-Chair Weinreb, who delivered  The Basics of Post-Pandemic Part 137 Mediation, a comprehensive PowerPoint lecture, planned  and directed a combined master class and group roleplay exercise, Perpetual Motions, with  essential assistance from the Committee leadership and the NYCLA CLE team. Over the course  of ninety minutes, NYCLA’s technical wizard, Daler Radjabov, and his trusted assistant, James  Miller, rotated six groups of five, virtually-appearing FDRP neutral recruits into “Spotlight” mode  for ten-minute intervals, after which they each received approximately four minutes of constructive critique from senior NYCLA FDRP mediators Pierre F. de Ravel d’Esclapon, Esther Liebert,  Harold Rubin, and Evan J. Spelfogel. These, in turn, all demonstrated incredible endurance in  having conducted a separate ninety-minute master class immediately prior to the group roleplay  segment that featured Co-Chair Fladgate in the role of defense counsel and Vice-Chair Timken as  a star co-mediator who ended up saving the day in strategically facilitating a negotiated settlement.  Notwithstanding the incredibly tight schedule for each rotating group, Daler and his team managed  to accommodate everyone who signed up to participate in the group roleplay segment. Their hard  work was nothing short of a tour de force and further established that ODR can be easily taught  according to the well-known medical school instructional method of “see one, do one, teach one.”  

Looking toward the future, the Committee is in the process of planning bankruptcy  mediation and international arbitration CLE events. MMO is also set to continue through at least  June. In addition, the Committee’s leadership is soon planning to launch an ODR initiative that  will assist New York courts with their ever-growing backlog of civil cases while simultaneously  providing participating neutrals with reasonable but fair compensation. Last, but certainly not  least, further development and enhancement of NYCLA’s FDRP—which is one of a select number  of attorney-client fee dispute programs to offer both arbitration and mediation options—is set to continue.  

While the pandemic still rages, the Committee remains energized and looks forward to  delivering another year of many interesting CLE programs and other events featuring ADR  visionaries and rising stars. And when—may it be immediately—COVID is no more, the  Committee’s members and supporters will be able to reflect upon a fine legacy of accomplishments  and accompanying accolades like those of Committee member M.A.B. (who requested that only  her initials be used here): 

I started looking into ADR this past year and have been following  

the NYCLA ADR Committee’s activities closely, attending many  

Committee events, including the ones focused on starting and  

growing an ADR practice and the Part 137 training. Generally, l  

found every event to be relevant, interesting, and helpful. Overall,  

I have been truly impressed by how much key information was  

shared with a genuine collegial approach, way beyond what I could  

have hoped for as a seasoned lawyer interested in ADR at an  

advanced stage of her career. Kudos to all and truly much  

appreciated.  

Indeed, kudos to the Committee’s leadership, members, supporters, and NYCLA’s CLE  Department not just for what they have done through their perseverance but for unlocking the  tremendous potential of what they are poised to do.  

Would you like to be a part of the Committee’s fine work in the fields of ADR and ODR?  Always willing to welcome new members, the Committee’s leadership can be contacted at  [email protected] for Co-Chair Weinreb, [email protected] for Co-Chair Fladgate, and  [email protected] for Vice-Chair Timken.