(a) Purpose. The purpose of this Rule is to provide a supplementary procedure to the
Court's existing alternative dispute resolution procedures that is specifically designed to assist
civilian pro se litigants. This Rule provides for the possibility of an earlier resolution of civil
disputes resulting in savings of time and cost to litigants and the Court without sacrificing the
quality of justice rendered or the right of litigants to a full trial on all issues not resolved through
assisted mediation.
(b) Definitions. Mediation is a process by which an impartial person, the mediator,
facilitates communication between disputing parties to promote understanding, reconciliation
and settlement. The mediator is an advocate for settlement and uses the mediation process to
help the parties fully explore any potential area of agreement. The mediator does not serve as a
judge or arbitrator and has no authority to render any decision on any disputed issue or to force a
settlement. The parties themselves are responsible for negotiating any resolution(s) to their
dispute.
(c) Scope. The Court may assign pro bono Special Mediation Counsel to assist pro
se civilian litigants with preparing for and participating in assisted mediation. The Assisted
Mediation Program is open to civilian pro se parties to actions in the Northern District of New
York. The assigned district judge or magistrate judge determines if the case would benefit from
assisted mediation and would also benefit from the assignment of Special Mediation Counsel to
assist the pro se party with the mediation process.
(d) Procedure. The procedure and limits of Assisted Mediation are governed by this
Rule, including the filing requirements preceding and following the assisted mediation session.
1. If the court determines that referral to the Assisted Mediation Program is
appropriate, the Court shall enter an order of reference to the Assisted Mediation
Program.
2. Within ten (10) days of the entry of the order of reference, the pro se party shall
complete and sign the Declaration of Assisted Mediation form provided by the
Clerk’s Office at www.nynd.uscourts.gov.
3. After receipt of the completed declaration, the Court shall issue an order
appointing Special Mediation Counsel, appointing a mediator, and setting a date
or time frame in which the assisted mediation session should be held. The court
may appoint a member of the court’s mediation panel, the assigned magistrate
judge, or another magistrate judge as the mediator.
4. If the assisted mediation session does not result in settlement, at the conclusion of
mediation procedures, the Court shall issue an order relieving the Special
Mediation Counsel of further representation duties and termination of the
attorney-client relationship.
(e) Duties of Special Mediation Counsel. Within five days of the filing of the order
of reference, the Special Mediation Counsel shall contact the pro se party to help prepare for the
assisted mediation session. On the agreed upon or set date, the Special Mediation Counsel
shall attend the assisted mediation session and provide assistance to the pro se party.
Thereafter, the Special Mediation Counsel shall help the pro se party complete any follow-up to
the assisted mediation session, including the processing of a settlement agreement when
necessary.
1. Memorandum for Assisted Mediation. At least two days prior to the mediation
session, each party shall provide to the mediator a “memorandum for assisted
mediation.” This memorandum shall
a. State the name and role of each person expected to attend;
b. Identify each person with full settlement authority;
c. Include a concise summary of the party's claims or defenses;
d. Discuss liability and damages; and
e. State the relief sought by such party
The memorandum for assisted mediation shall not exceed five pages, and the
parties shall not file these documents in the case or otherwise make them part of
the court file.
(f) Service to the Bar and Court Provided by Special Mediation Counsel. Special
Mediation Counsel performs duties as a pro bono service to the Court, litigants, and the bar.
Costs Special Mediation Counsel incurs during the course of representation of the pro se party,
including costs associated with obtaining copies of materials filed prior to appointment and in
attending mediation sessions, are recoverable under L.R. 82.3(g).
(g) No person shall serve as a mediator in an action in which any of the
circumstances specified in 28 U.S.C. § 455 exists or may in good faith be believed to exist.
Additionally, any mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. §
144. Furthermore, the mediator has a continuing obligation to disclose any information that may
cause a party or the court to believe, in good faith, that such mediator should be disqualified.
(h) Assisted mediation sessions under this Rule may be held in any available court
space or in any other suitable location agreeable to the mediator and the parties. Consideration
shall be given to the convenience of the parties and to the cost and time of travel involved.
(i) There shall be no continuance of an assisted mediation session beyond the time
set in the referral order except by order of the Court upon a showing of good cause. If any
rescheduling occurs within the prescribed time, the parties or the mediator must notify the ADR
clerk and select the location of the rescheduled hearing.
(j) The parties shall promptly report any settlement that occurs prior to the scheduled
assisted mediation to the mediator and to the Court.
(k) Attendance Required. The attorneys who are expected to try the case for any
represented parties shall appear and shall be accompanied by an individual with authority to
settle the lawsuit. Those latter individuals shall be the parties (if the parties are natural persons)
or representatives of parties that are not natural persons. These latter individuals may not be
counsel (except in-house counsel). Attorneys for the parties shall notify other interested parties
such as insurers or indemnitors who shall attend and are subject to the provisions of this Rule.
Only the assigned judge may excuse attendance of any attorney, party, or party's representative.
Anyone who wants to be excused from attending the assisted mediation must make such request
in writing to the presiding judge at least forty-eight (48) hours in advance of the assisted
mediation session.
(l) Good Faith Participation in the Process. Parties and counsel shall participate in
good faith, without any time constraints, and put forth their best efforts toward settlement.
Typically, the mediator will meet initially with all parties to the dispute and their counsel in a
joint session and thereafter separately with each party and their representative. This process
permits the mediator and the parties to explore the needs and interests underlying their respective
positions, generate and evaluate alternative settlement proposals or potential solutions, and
consider interests that may be outside the scope of the stated controversy including matters that
the Court may not address. The parties will participate in crafting a resolution of the dispute.
(m) Confidentiality. Assisted mediation is regarded as a settlement procedure and is
confidential and private. No participant may disclose, without consent of the other parties, any
confidential information acquired during assisted mediation. There shall be no stenographic or
electronic record, e.g., audio or video, of the assisted mediation process.
1. All written and oral communications made in connection with or during the
assisted mediation session are confidential.
2. No communication made in connection with or during any assisted mediation
session may be disclosed or used for any purpose in any pending or future
proceeding in the U.S. District Court for the Northern District of New York.
3. Privileged and confidential status is afforded all communications made in
connection with the assisted mediation session, including matters emanating from
parties and counsel as well as mediators' comments, assessments, and
recommendations concerning case development, discovery, and motions. Except
for communication between the assigned judge and the mediator regarding
noncompliance with program procedures (as set forth in this Rule), there will be
no communications between the Court and the mediator regarding a case that has
been designated for assisted mediation. The parties will be asked to sign an
agreement of confidentiality at the beginning of the assisted mediation session.
4. Parties, counsel and mediators may respond to inquiries from authorized court
staff which are made for the purpose of program evaluation. Such responses will
be kept in strict confidence.
5. The mediator may not be required to testify in any proceeding relating to or
arising out of the matter in dispute. Nor may the mediator be subject to process
requiring disclosure of information or data relating to or arising out of the matter
in dispute.
6. Immunity. Mediators, as well as the Mediation Administrator (ADR clerk), shall
be immune from claims arising out of acts or omissions incident to service as a
court appointee in the mediation program. See, e.g., Wagshal v. Foster, 28 F.3d
1249 (D.C. Cir. 1994).
7. Default. Subject to the mediator’s approval, the assisted mediation session may
proceed in the absence of a party, who, after due notice, fails to be present. The
Court may impose sanctions on any party who, absent good cause shown, fails to
attend or participate in the assisted mediation session in good faith in accordance
with this Rule.
8. Conclusion of the Mediation Session. The assisted mediation shall be
concluded
a. By the parties' resolution and settlement of the dispute;
b. By adjournment for future assisted mediation by agreement of the parties and
the mediator; or
c. Upon the mediator's declaration of impasse that future efforts to resolve the
dispute are no longer worthwhile.
Unless the Court authorizes otherwise, assisted mediation sessions shall be
concluded at least fourteen (14) days prior to any final pretrial conference that the
Court has scheduled.
If the assisted mediation is adjourned by agreement for further mediation, the
additional session shall be concluded within the time the Court orders.
(n) Immediately upon conclusion of the assisted mediation, the mediator shall file a
mediation report with the ADR clerk, indicating only whether the case settled, settled in part, or
did not settle. This requirement does not apply if a magistrate judge serves as the mediator.
(o) In the event the parties reach an agreement to settle the case, the representatives
for each party shall promptly notify the ADR clerk and promptly prepare and file the appropriate
stipulation of dismissal.
(p) If the parties reach a partial agreement to narrow, withdraw or settle some but not
all claims, they shall file a stipulation concisely setting forth the resolved claims with the Court
within five (5) days of the assisted mediation. The stipulation, upon approval by the Court, shall
bind the parties.
(q) If the assisted mediation session does not conclude in settlement of all the issues
in the case, the case will proceed toward trial pursuant to the scheduling orders entered in the
case.
