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Referral Process

Step 1: When cases are filed in court and the judge recommends mediation, the clerk faxes a referral to the Mediation Center at least two weeks before the court date with the following information:

  • Contact information for both parties, including full name, address, and phone numbers
  • A brief description of the nature of the dispute (i.e. breach of contract, housing dispute, personal property)
  • The relationship of the parties (i.e. landlord/tenant, strangers, ex-girlfriend/ex-boyfriend, consumer/merchant)

Step 2: The Mediation Center contacts parties to explain how mediation works, that it is a voluntary process, and finds out if parties are both amenable to mediating the case. If parties do not wish to mediate, the Mediation Center notifies the court that no mediation will be held. All parties in cases involving intimate partners (i.e. ex-girlfriend/boyfriend, ex-husband/wife) are required to meet with Mediation Center staff separately and in-person before proceeding with mediation. Mediators are prohibited from mediating intimate partner cases if both parties have not previously met with Mediation Center staff.

Step 3: If both parties agree to mediation, the Mediation Center either:

a) Schedules a mediation at the Mediation Center in Poughkeepsie before the parties’ next scheduled court appearance, in which case the Mediation Center faxes a referral results to the court and includes any written agreements reached by the parties in mediation (see Mediation Agreement). The Mediation Center also mails the original copy of written agreements to the court.

OR

b) Arranges for a mediator to mediate the case on-site at the parties’ next court appearance. In the case that parties agree to mediate on-site at court, the Mediation Center notifies the court to expect a mediator at court. The court will provide a private room with a table and chairs for mediations to take place.

Step 4: If parties reach a written agreement in mediation, the Mediation Center gives a copy of the agreement to the judge to sign; each party also receives a signed copy of the mediation agreement. Once signed by the judge, mediation agreements are legally binding. In the case that one or more parties do not abide by the terms of a written mediation agreement, the case will be referred back to the court for enforcement.

If parties mediate, but do not reach an agreement, the court is simply notified that no agreement was reached in mediation. Everything discussed in mediation, or between parties and Mediation Center staff in preparation for mediation, is confidential (the only exception is child abuse). Volunteer mediators, Mediation Center staff, and records of the Mediation Center may not be subpoenaed for court proceedings. Mediator confidentiality is protected under Article 21A of New York State’s Judiciary Law.

Mediating Small Claims Court Cases

The Center provides mediation for small claims court cases in two ways:

  1. By mediating cases referred from court prior to the court date and;
  2. By mediating cases at court, referred directly from the judge

The Center regularly receives small claims case referrals from Poughkeepsie City and occasionally Fishkill Town courts via fax. The Center then sends a letter to all of the parties describing mediation and inviting them to call if they are interested in our services. We also attempt to contact the parties via phone, if a number is provided. If one party responds and wishes to mediate, we then check in with the other party. If both parties wish to mediate, a date and time for mediation is scheduled. If the case settles in mediation prior to the court date, parties do not have to appear in court. If the case does not settle in mediation, the parties are instructed to keep their court date.  Often parties may choose to mediate at court (even if they have already been referred, did not respond, or declined mediation) and are often encouraged to do so by the judge.

On site court mediators are regularly scheduled to attend Poughkeepsie City, Town of Poughkeepsie, Beacon City, and Hyde Park courts. Several other courts refer cases to the Center on a less frequent basis and may request an on site court mediator, which the program manager can arrange on a case by case basis. These courts include: Pleasant Valley, Red Hook, Town of Dover, Town of Northeast, and Village of Fishkill.

(See Court Mediator Schedule)

Court mediations vary in length, depending on the court and case load, usually lasting about 30 minutes or longer.

Role of the Mediator

Although mediators may have content knowledge about court proceedings from their own professional background or knowledge through personal experience, mediators must be cautious regarding any information provided to parties in a mediation session. The unauthorized practice of law has been a growing area of concern as mediation becomes more widely practiced.

Mediators may freely answer parties’ questions regarding the mediation process, such as:

  • How was the case referred to the Mediation Center?
  • Do I have to go to court if I mediate?
  • What happens to my agreement after mediation?
  • What happens if we don’t reach an agreement in mediation?
  • What happens if the other party does not honor the mediated agreement?


Mediators must not offer opinions about parties’ questions regarding probable outcome or recommended course of action, such as:

  • What will the judge do?
  • What kind of evidence should I bring?
  • Do I need an attorney?
  • How do you think a judge will rule in this case?
  • What happens if the other party does not show up in court?
  • What do you think I should do in this case?

Mediators should answer with clarity and transparency, explaining that ethical standards prohibit them from advising parties or offering an opinion. Mediators should refer parties to court for answers to these questions.

The proceedings of mediation are confidential. Therefore, the Mediation Center cannot reveal to the court any information about a mediation session, or about any correspondences with parties.

Attorneys

Often attorneys representing parties in small claims cases are helpful in providing information and assisting their clients in resolving the issues. Attorneys may play a very active role in negotiating or may act in a supportive role while clients themselves discuss the issues. Sometimes, only one of the parties is accompanied by an attorney and, because the other party is unrepresented, it is necessary to check in with that party about his/her participation.

If only one of the parties is accompanied by an attorney, it's important to check with the unrepresented party about his/her participation in mediation to ensure they are comfortable participating without representation. Explain that parties may bring whomever they chose (attorney, advocate, witness, friend or family) to accompany them in mediation. If one party is accompanied by an attorney and another is not, check in with each to make sure they are comfortable going forward with the mediation with the attorney present.

Paperwork

Required paperwork for court mediations is no different than for any other mediation. It is important that court mediators complete and return all paperwork to the Community Program Manager within two weeks; the Center can provide court mediators with addressed, stamped envelopes for this purpose. It is absolutely necessary that all parties sign the Mediation Consent Form before beginning a mediation session. Mediators should read aloud the Mediation Consent form to ensure that parties understand that mediation is both voluntary and confidential. Upon concluding each mediation, mediators must complete all fields of the Mediation Profile reporting form. Whenever possible, court mediators should ask parties to complete the Mediation Evaluation Form. On the backside of the Evaluation Form, parties are asked to share basic demographic information, to better assist the Mediation Center in reporting and evaluating our services.

Agreements

If parties come to a settlement agreement in mediation, all parties and the mediator sign a written mediation agreement. If the mediation takes place at the Center, a copy of the agreement is then faxed immediately to the court clerk and the original signed agreement is mailed to the court clerk. For on-site court mediations, the agreement is handed directly to the judge. The judge signs the mediated agreement and it is entered into the court record. Once entered into the court record, the mediated agreement is legally enforceable, just as if the judge had ordered the agreement.  Mediators should obtain a copy of the signed agreement from the judge, to be returned with other paperwork to the Mediation Center.

Explain that, in order for an agreement to be legally enforceable, courts request specific information regarding the amount of money agreed to (if any), and the time frame for payment to occur. Agreements should include the following:

  • Who is to pay whom
  • How much money is being paid in total
  • If a payment schedule is included
    • How much each payment will be
    • When each payment will be made (postmark or delivery date, etc.)
    • How the payments will be made (check, money order, cash, etc.
    • How payments will be delivered (mail, certified mail, by hand, etc.)

If one of the parties defaults on a mediated agreement, the other party has two options:

  1. Contact the Mediation Center and request a follow-up mediation
  2. Contact the court regarding enforcement

Scheduling a Second Mediation

Parties can schedule a second session with their mediator during their initial session, whether that session is held at court or at the Center. The mediator then notifies the Mediation Center staff of the date and time for the second session.

If the second session cannot be scheduled prior to their court date, the parties should schedule a date and time with their mediator and then call the court to request an adjournment. The parties—not the mediator or the Center—must call the court to request an adjournment of their court date. The court alone decides whether or not to grant the adjournment; the Mediation Center is not empowered to adjourn a court case, or even to request an adjournment.

If the adjournment is granted, the parties must call the Mediation Center to confirm the date and time of their second session. The Mediation Center staff will notify the mediator that the date and time are confirmed.

Developing and Maintaining Relationships with Courts

One of the responsibilities of the Community Program Manager is to develop and maintain relationships with Dutchess County courts, judges and their clerks. The Center has attempted to reach out to new courts through the use of a survey of needs/interest in mediation, as well as through phone contact with judges and clerks, and occasionally in-person meetings. The Center has developed a Memorandum of Understanding (see attached) regarding the court referral process to facilitate referrals from new courts.

For those courts that refer cases to the Center and utilize volunteer mediators on-site, it is important to maintain regular contact through letters updating them on any policy changes or news from the Center, as well as providing them with bi-annual small claims case reports.

It is also important to check in periodically with court mediators and, whenever possible, attend mediator discussion groups to learn about issues that may come up while mediating on court.