Dear Supporters: 

I hope that this message finds you all well, and for those celebrating Valentine's Day, I wish you a happy holiday.  (Being Jewish, I do not personally celebrate this day, but the themes of love and friendship associated with the day are concepts to which I certainly can and do relate).

Earlier this morning, the New York State Bar Association Dispute Resolution Section's Mediation Committee held an important and one might even say historic meeting on the proposed statewide ADR rules.  I spoke briefly on the petition and alerted the participants to the existence of the Table of State Neutral Compensation Rules and Statutes (https://tinyurl.com/State-Neutral-Comp-Statutes) as a valuable source of information in formulating future policies pertaining to neutral compensation.  I also shared what amounted to the following comments on the proposed rules (which are taken from an e-mail that I wrote prior to the meeting to one of the meeting's organizers, although portions below are close to being near-verbatim to what I actually stated): 

"I think the proposed statewide rules are a welcome development.  As they are currently written, I'm certainly not opposed to them, insofar as they amount to enabling rules with respect to neutral compensation on some level.

The main issue I have with them from a compensation perspective is that they still can provide for "free time" systems, which effectively amount to ADR slavery and zero compensation.  There can be no opportunity for such systems to exist, and the current ones must be eliminated.

As such, I believe there should eventually be a pronouncement in the Rules of the Chief Judge establishing that except in cases where parties prove to the Court financial inability to pay (which also means that they cannot pay their attorneys anything), neutrals must be compensated by default such that they are guaranteed by law to receive a certain minimum per case. This is currently the Eastern District of New York model ($600 minimum pro rata for mediation) and a relatively good one in my view, although it would also be nice if preparation time were compensated by default as well to some degree, as currently provided for by the Northern District of New York (up to $300 pro rata for two hours' worth of preparation time).

Once these compensation 'floors' are set, individual courts can then act as they see fit, but without them, we're likely going to have a situation develop where neutrals will refuse to work in courts where compensation is not guaranteed in favor of courts where some minimum compensation is set."

After the meeting officially concluded, I was approached virtually by one of the attendees who remarked that the various references that I have to "slavery" or "ADR slavery" in the petition as well as in the Table were inflammatory to her in light of the African-American experience with the institution in the United States. 

There was not enough time then for an adequate response to her, but I would like to post one here now. 

Black's Law Dictionary (2d ed.) defines slavery as the "civil relation in which one man has absolute power over the life, fortune, and liberty of another."  (See https://thelawdictionary.org/slavery/).

Without in any way minimizing or otherwise denigrating the horrible experience of African-Americans (both in North America and South America), Jews (from ancient Egypt through and including the Holocaust), Native Americans (again, both in North America and South America), devshirme recruits (see https://en.wikipedia.org/wiki/Devshirme), and other victims of "classical" or "historical" slavery which featured hideous and revolting torture, homicide, theft of real and personal property, and other crimes against G-d and humanity such that there can be no complete equivalence or identity between "classical" or "historical" slavery involving these victims and the inequitable, unfair, and unjust treatment involved in the use of "free time" ADR systems, I respectfully submit that such systems implicate the elements of "slavery" as defined above. 

To be clear, "free time" systems--those in which all preparation time and a certain period of ADR session time (usually ranging between 90 minutes and 180 minutes)--currently mandate that neutrals expend hours of their lives in preparation for ADR sessions and then further expend a period of ADR session time in order to have even a chance at being compensated for their expertise and hard work.  The time they expend--compelled by government (i.e., the current rules in place throughout New York)--constitutes lost life.  Their deprivation of compensation--compelled by government--until "free time" periods elapse constitutes lost fortune.  Their being powerless to conduct ADR sessions without fear of at least one of the participants potentially weaponizing the "free time" period against their adversaries or, worse, against the neutral by taunting him/her with such jabs as "keep in mind that no matter what you do here, you will not get paid and will have wasted your time because we are walking out as soon as the free time is up" constitutes an egregious loss of liberty and peace of mind (i.e., psychological damage).

This is not to say that true pro bono ADR programs (i.e., small claims court, Part 137 attorney-client fee disputes, conflicts or disputes handled by Community Dispute Resolution Centers, etc.) or ADR in cases where the litigants truly cannot afford access to justice in the first place have no place in society.  They most certainly do.

However, court-annexed programs involving cases where both sides are represented by paid counsel should not be grouped with such programs.  More importantly, they should not be governed by a pseudo-compensation scheme that effectively meets all of the elements of the word which I initially used to describe it: slavery.  As such, as now clarified by my comments above, I will continue to use this word in the petition to describe "free time" systems for what they are and why they must be eliminated with all deliberate speed.

All the best, 
Elan

P.S.: Don't forget that you can submit comments on the proposed statewide rules until April 4, 2022.  See https://www.change.org/p/new-york-state-house-fairly-compensate-new-york-court-mediators-neutral-evaluators-and-arbitrators/u/30180295 for more information, and please spread the word about the petition!  Here's the relevant link if you need it: https://www.change.org/NY-ADR-Compensation.