ADR in Family Law

Date: February 29, 2024 at 8am

Time: 90 Minutes
Presenter: Katie L. Kestel Martin, Esq., MSW

Biography of Speaker:

Katie L. Kestel Martin, Esq., MSW is a Partner at Pusatier, Abbott, Sugarman & Martin,
LLP located in Buffalo, New York. She practices as a trial attorney and mediator in divorce and
family law matters such as child custody and support matters. Katie has been practicing as an
attorney for 10 years, with experience, prior to private practice, in non-profit legal services
specializing in mental health advocacy representing individuals in the community and in hospital.
She attained her Master of Social Work in 2012, with clinical internships in School Social Work
and as student law clerk Judge Lisa Bloch Rodwin in Erie County Family Court. Katie has
specialized mediation training in divorce, custody and visitation, and permanency mediations. She
currently chairs the Alternative Dispute Resolution (ADR) Committee for the Bar Association of
Erie County.

Objectives:
• Explain what is ADR (i.e., alternative or appropriate dispute resolution), how is it used,
and benefits of same
• In client consultations or case strategy meetings, meaningfully discuss, consider and
recommend dispute resolution alternatives
• Identify and locate local resources for alternative/appropriate dispute resolution

I. Opening the Door to ADR

Alternative Dispute Resolution or Appropriate Dispute Resolution offers the opportunity for
parties (either individuals or groups (such as businesses, agencies, etc.) to resolve issues through
discussions and/or negotiations guided by a neutral third party. This process can be used by parties
before, during, and/or after court intervention.

A neutral third party is a professional who is educated or has experience in the subject matter (i.e.,
family law, personal injury, employment discrimination, etc.). This person is responsible for
guiding the process with varying degree of influence on the process. For example, an arbitrator
or neutral evaluator will have a more influential role regarding an outcome of a process versus a
mediator.

NOTE: Mediation has its own spectrum of practice including transformative versus facilitative
mediation.
ADR Options:
1. Educate and Recommend (Professional Rules 2.1, 1.5, 1.4)

Mediation—Collaborative—Arbitration—Adjudication

Increased Influence
Control of Loss of
Process- control of
Parties decide process- third
Outcome party decides

Reasons attorneys ought to educate and recommend ADR can be found through the New
York State Rules of Professional Conduct (effective April 1, 2009), more specifically:

Rule 2.1: “Advisor” – “In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering advice, a lawyer may refer
not only to law but to other considerations such as moral, economic, social psychological,
and political factors that may be relevant to the client’s situation.”

Rule 1.5: “Fee and Division of Fees” – in large part, parties should be informed of how
they will be charged for attorney time and additional expenses. The scope of the
representation and basis or rate of fee should be communicated clearly to the client. This
could also reflect a reasonable amount of time and overall costs to be expected. Specifically
in divorce matters (referred to a domestic relations matters, a Statement of Client’s Rights
and Responsibilities at the initial conference and prior to signing a written retainer
agreement must be provided to a prospective client.

Rule 1.4: “Communication” – “(a) A lawyer shall:

(1) Promptly inform the client of:
i. Any decision or circumstance with respect to which the client’s informed
consent, as defined in Rule 1.0(j), is required by these Rules;
ii. Any information required by court rule or other law to be communicated to a
client; and
iii. Material developments in the matter including settlement or plea offers.
(2) Reasonably consult with the client about the means by which the client’s objectives are
to be accomplished;
 (3) Keep the client reasonably informed about the status of the matter;
(4) Promptly comply with a client’s reasonable requests for information;
(5) Consult with the client about any relevant limitation on the lawyer’s conduct when the
lawyer knows that the client expects assistance not permitted by these Rules or other
law.

(b) a lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.

2. ADR Process Relevant to Family Law

Mediation is the most common ADR approach used for Family Law matters. Most Family
Law mediations will be more facilitative rather than evaluative or transformative; however, there
could be reason for more direct forms of mediation such as in Permanency proceedings (i.e.,
matters in which a parent is expected to have their parental rights terminated.)

Parties can be introduced to the mediation process through court or by a private, neutral
practitioner. In Erie County, the court has a mediation program within the Erie County Family
Court that will allow parties to be referred to mediation, which is offered either through a court
attorney referee or volunteer mediators provided by the Center for Resolution and Justice (the local
Community Dispute Resolution Center “CDRC”). For divorce matters, the 8th Judicial District
(which includes Erie County) has a panel of qualified mediators. Otherwise, parties may mutually
agree upon a mediator outside of the court panel. If the parties are not in court, they may seek
assistance through a private mediator or the local CDRC if they qualify.

Issues that can be negotiated/discussed in mediation:

- Parenting time
- Decision making
- Holiday and recess schedules
- Third party involvement (i.e., extended family, introduction to significant others)
- Relocation of a child’s residence
- Child Support*
- Maintenance*
- Equitable Distribution*
*Child Support, Maintenance, and Equitable Distribution may not be available for
mediation in a family court mediation but rather only in a divorce mediation.
 3. Important Elements of ADR

• ADR, especially mediation, is voluntary and confidential.

o There is a “presumptive” model of ADR in NYS courts, however, it is
nuanced.
• What Options Exist: mediator vs. collaborative law vs. everything in between
• Accessing those Options: private ADR practitioners, panels (through the
court, local bar associations, or the NY DEI Neutral Directory – see below)
• Decisions: fully informed; good faith negotiations
• Benefits of confidentiality, self-determination, customization
• Safety – IPV screening
• Identifying Interests
• Timing, shifts in timing – either in or outside of court
• Possible facilitation of improved communication between the parties

4. Choosing a Neutral

• Private Neutrals – private practitioners, panels

• Court Connected Programs/Court Roster Mediators and Neutrals (Part 146 –
Rules of the Chief Administrator)
https://www.nycourts.gov/ip/adr/Part146.shtml
• Community Dispute Resolution Programs (CDRCs): CDRCs are a
network of independent, not for profit centers providing free or low-cost
mediation, facilitation, conciliation and arbitration services to New Yorkers.

• Consider: What is the Mediator’s education, training and experience?

• What is their style (facilitative, evaluative, transformative, etc.)

• NY DEI Neutral Directory: NY DEI Neutral Directory (google.com)

5. Q&A

______________________________________________________________________________
Follow Up Recommendations to attendees
- 2019 Press Release re: Presumptive ADR
https://ww2.nycourts.gov/sites/default/files/document/files/2019-05/PR19_09_0.pdfLocal

Resources
http://ww2.nycourts.gov/COURTS/8jd/adr.shtml
Statewide Alternative Dispute Resolution Office | NYCOURTS.GOV

Current CDRC programming (CDRCs Community Dispute Resolution Centers Program

(CDRCP) | NYCOURTS.GOV)
CDRC Conflict Resolution - Child & Family Services (cfsbny.org)