The Honorable Anthony Marano, Administrative Judge for Nassau County and the Honorable Robert A. Ross, Supervising Judge of the Matrimonial Parts, announced a new matrimonial initiative to the Nassau County Bar Association Matrimonial Law Committee members at their October 15th meeting. This initiative, which encompasses both mediation and neutral evaluation, is the latest program that the Matrimonial Center offers for litigants to resolve issues before embarking on what is often protracted costly litigation. It complements the Model Custody Part, which is designed to address acrimonious custody disputes.
The assigned Supreme Court Justice in any contested action, with the consent of the parties, shall recommend an issue or matter for mediation or neutral evaluation. However, a matter shall be deemed ineligible for mediation if there are:
a. Prior domestic violence proceedings between the parties;
b. Prior adjudication of guilt or responsibility in an independent civil or criminal proceeding based upon family or domestic violence; and
c. Pending criminal or civil proceedings based upon family domestic violence.
There are specific components to each program:
Mediation Program
The mission statement of the Mediation Program is:
“… to assist the Court, counsel and litigants as they resolve matters …” recognizing first and foremost the need to advance the interests of litigants and their children engaged in family litigation as well as provide a reasonable and cost effective alternate dispute resolution formulas.
Assisting Administrative Judge Marano in establishing and implementing this program is the Nassau County Matrimonial ADR Advisory Committee composed of the following members:
• Supervising Judge Ross,
• Supreme Court Justice Vito M. DeStefano,
• Robert Mangi, Esq. (as chair of the NCBA Matrimonial Committee),
• A non-mediator member of the local bar, a practicing attorney-mediator,
• A practicing mental health professional mediator,
• A representative of the domestic violence advocacy committee,
• A representative of the Peace Program, and
• The Director of the Alternative Dispute resolution Programs for the Office of Court Administration.
The committee serves to guide the Ad-ministrative Judge in consistent application of mediation services, including procedural rules and standards of conduct for mediators as well as systematic review of the program’s efficacy.
Mediation is a process supervised by a qualified mediator trained to facilitate communication be-tween litigants, identify issues and assist the participants in reaching a fair solution they designed. Mediation is not intended as a substitute for independent legal counsel; participants are encouraged to seek advice of counsel before, during and after the mediation. Moreover, completion of discovery shall be determined on an individual basis, however, mediation will not proceed unless each attorney for a party stipulates meaningful settlement discussions can proceed.
Prior to commencement of a mediation session the mediator shall:
1. Confirm fee arrangements (pursuant to a rate fixed by the Court) and apportionment of cost between the parties.
2. Affirm neutrality and clarify the role of mediator, not a therapist or counselor.
3. Attorney for respective party must attend mediation and participate in the process.
4. Define the process and identify impairments as they may surface.1
5. Disclose any existing relationship between the mediator and either party and/or attorneys for the respective parties.
Protocols for the process are implemented to assure safety of litigants, self determination of issues, procedural informality, privacy, confidentiality and transparency in disclosure of relevant information. All written and verbal communications made during mediation sessions are confidential and may not be disclosed by the mediator, a participant or observer of the mediation except by the parties to their attorneys. Additionally, each respective attorney for a party and the children’s attorney may be present during mediation sessions, and the discussions are privileged except as otherwise provided by law. Attorneys may waive their right to be present. After initial intake, a party or the mediator may terminate the process without prejudice.
Neutral Evaluation
Like mediation, neutral evaluation shall be conducted under the supervision of a neutral third party, the qualified neutral evaluator (NE), and is a non-binding confidential process. The NE’s services are free to the participants under the sponsorship of the NCBA Matrimonial Law Committee.
The NE shall ascertain the issues and assess the likely outcome in non-complex cases where assets and income are limited, and values are minimal and readily discoverable, such as the case with W-2 wage earners. The NE’s expertise in the subject matter permits the litigants a prospective glimpse at the ultimate conclusion that may result on a particular issue or the case en toto were the Court to make a determination. The goal of this process is to drive the parties’ and their respective counsel to a self-determined settlement rather than a litigated judgment.
All mediators and neutral evaluators must meet the minimum qualifications and training criteria set forth in Rule 146.4 and serve at the discretion of the District Administrative Judge. The Judge presiding over the case will select a neutral from a list of pre-approved professionals pursuant to Rule 146.3 maintained by Judge Marano.
Neutral Evaluators must also meet the following requirements:
• Lawyer admitted for 5+ years
or
• an individual who served for 5+ years as a Judge
and
l 5+ years of substantial experience in the specific subject area.
Qualifications for Mediators include:
Successful completion of 40 hours of approved training in the following:
• 24 hours of basic mediation skills and techniques
• 16 Hours of additional training in mediation specific to the subject area of the referred cases
and
• Agreement to abide by Standards of Conduct for Family Mediators
Attorneys who are interested in participating as a neutral should contact Judge Ross in writing and advise of their interest in consideration for the panel. This is an opportunity for the Bar, in cooperation with the Judiciary, to assist Nassau County in minimizing acrimony in our Courts and promoting civility in the best interest of the parties and their families.
Finally, to acquaint litigants with their options, the Public Information Office of the Nassau County Supreme Court will provide a video and written materials to be made available at the Information Desk in the Matrimonial Center. In-formation will also be available through the New York State Parent Education and Awareness Program (PEACE) program, for which attendance is now mandatory as per Rule of the Chief Judge §144.3.
Nancy E. Gianakos is a matrimonial and family law practitioner, of counsel to Albanese & Albanese LLP, Garden City, New York; admitted in Connecticut, New York and New Jersey and member of the New York State Bar Association, Nassau County Matrimonial and Family Law Committee, The American Family Law Inns of Court, the New York Association of Collaborative Professionals and serves as the matrimonial focus editor of the Nassau Lawyer.
Justice Timothy S. Driscoll is currently assigned to the Matrimonial Center. Prior to beginning service as a Supreme Court Justice in January 2008, he served as Nassau Deputy County Executive, a federal and state prosecutor, a lawyer in private practice and a law clerk to Judge Joseph M. McLaughlin of the United States Court of Appeals for the Second Circuit. A graduate of Harvard Law School and Hofstra University, Justice Driscoll is also an adjunct professor at Brooklyn Law School and a teaching team member at the Harvard Law School Trial Advocacy Workshop.
1. Impairments are conditions which hinder the ability of a party to negotiate safely i.e. intimidation, substance abuse, mental illness, etc. Safeguards shall be implemented while mediation is in process to counter impairments that may arise.
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