Dear Supporters:
Happy November, and early best wishes for happy holidays and a stellar 2022!
The Table of State Neutral Compensation Statutes is now COMPLETE! Thank you to Dorothy Kaldi, Esq. and Federica Romanelli, Esq., who helped me with the months of arduous research and Google Sheet programming that have made this table a phenomenal resource not only for New York practitioners, but for practitioners as well as academics throughout the country.
Now that we have the table complete, what are the next steps? Well, for one, we have to get the word out that New York is one of only three states (the other two are California (unofficially) and New Jersey) utilizing a state-wide compensation scheme of neutral-donated "free time." This hideously unfair scheme effectively amounts to slavery under the guise of altruism and actively hinders the promotion of diversity and inclusion in part because diverse neutrals cannot afford to "pay in" to such a system reminiscent of medieval guilds. (See the "Analysis of State Neutral Compensation Statutes" tab in the Table for more specific information).
To so get the word out on how New York lags behind practically every state in the nation and effectively treats its neutrals working in court-annexed programs as slaves, we need:
1) More Supporters for This Petition - Come on, people! 365 supporters, when other "fair pay" petitions on change.org have thousands of supporters, does not cut the proverbial mustard. We now have fact and law on our side via the Table, as well as some fair neutral compensation champions. These include renowned California ADR practitioner Jeff Kichaven, Esq., who in advocating for fair neutral compensation based upon market rates, has cited Article 23, Section 3, of the Universal Declaration of Human Rights, adopted on Dec. 10, 1948, by the United Nations: “Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity....”
Our champions also include Frank E.A. Sander, the late (he passed on in 2018) professor emeritus and Associate Dean of Harvard Law School. In February 1992, almost twenty years ago now, he authored Paying for ADR [Alternative Dispute Resolution] - To make it work, we have to provide funds for it, an opinion piece in the American Bar Association Journal. Therein, he stated, “If ADR is to develop responsibly as a practice, its practitioners need to be reasonably compensated.”
SO, AGAIN, PLEASE SHARE/PROMOTE THE PETITION TO AS MANY PEOPLE AS POSSIBLE.
2) Continuing Legal Education Program - Along with Dorothy Kaldi, I plan in the next couple of months on presenting a continuing legal education ("CLE") program at the New York County Lawyers Association, where I am Co-Chair of the ADR Committee, specifically on the topic of fair neutral compensation in New York as well as neutral compensation throughout the United States. I'll post an update when the date for this program is set.
3) Bring ADR to the People - Those who have watched the video of the May 4, 2021 online meeting know that many of my colleagues want to get input from various attorney groups on proposed legislation--what some people, using Orwellian-esque jargon, call "stakeholders"--to get on board with a legislative push before advocacy for an enabling statute is attempted.
I've come to realize that this is a mistake.
ADR has to be the choice of litigants, NOT their attorneys, who may very well have conflicts-of-interest in offering ADR alternatives to their clients simply because protracted litigation is often more lucrative to attorneys than resolution of a case through ADR processes.
I thus would request that if you know anyone now who is involved in a legal dispute of any kind that is either headed to litigation or already in litigation that you: (i) mention the petition to him or her and request that he or she sign same; and (ii) more importantly, ask if his or her attorney has discussed ADR options with him or her (although you should also be sure that in making this inquiry, you instruct that you do not want to know any specifics about the dispute itself, just whether ADR options have been discussed). Then, DO NOT instruct the individual further on what to do in that you do not want to have a tortious interference claim on your hands. Rather, just make sure that he/she is informed about the availability of ADR, and if he/she wants to take action vis-a-vis his/her attorney after being so informed, so be it. But again, that's his/her decision to make, not yours.
The more people who are about to be or actively involved in litigation are educated and informed about the availability of ADR options, the more ADR will become a truly respected and utilized alternative to litigation. That, in turn, will drive the New York legislature to enact the legislation contemplated by the petition.
4) OCA's Limited Relief in the Form of Neutrals Now Being Able to Negotiate Alternative Compensation Agreements: Use It! - Finally, for those neutrals who are fortunate enough to be part of Part 146 rosters like those of Supreme Court, New York and--very recently--Supreme Court, Nassau County, which by their program rules (Nassau County has Rule 6(e), for example), explicitly permit neutrals to negotiate around "free time" limits (and even receive compensation for prep time!), PLEASE AVAIL YOURSELVES OF THIS OPPORTUNITY AND DO SO AS EARLY AS POSSIBLE AFTER BEING ASSIGNED TO A CASE! Do NOT be afraid to speak up and ask THE PARTIES DIRECTLY (not their attorneys) for compensation on a reduced hourly, flat rate, sliding scale, or other alternative compensation basis that does not involve "free time" (except for a contingency-based arrangement, which is generally viewed as unethical and improper), especially if you've been part of these rosters for more than a year. If the parties are not willing to compensate you reasonably when you know they can--and remember to speak to them directly and NOT via their attorneys, as well as to get the terms of any alternative compensation agreement in writing--WITHDRAW unless you feel that the case is one on which you should be working for nothing to gain experience.
In so doing, remember that you are a professional and should not be treated as a slave or otherwise abused. If the parties' attorneys are getting paid by them to prep for and participate in ADR processes--and in most cases they certainly are--SO SHOULD YOU!
In this regard, the New York Office of Court Administration ("OCA"), by enacting such rules permitting negotiation of compensation, has finally decided to take a step in the right direction about neutral compensation. Thank you very much, OCA! However, for the long term, this is only a temporary solution and does not clear the accursed "free time" compensation scheme off the proverbial books. We need to fight tooth and nail for the enabling legislation that is the object of this petition, and that fight begins and ends with your efforts.
Be strong, be strong, and we will be strengthened!
All the best,
Elan