• 83.10 § (d) – Civil Cases Eligible
• 83.10 § (e) – Referral to Arbitration
• 83.10 § (e)(2) – Removal or Exemption from Arbitration
• 83.10 § (e)(3) – Cases not Eligible for Arbitration
• 83.10 § (g) – Arbitration Award and Judgment
• 83.10 § (h) – Trial De Novo

• 83.11 § (b) – Mediation Procedures
• 83.11 § (b)(4) – Written Mediation Statement
• 83.11 § (b)(5) – Mediation Sessions
• 83.11 § (b)(6) – Settlement

• 83.12 § (d) & (e) – Entry into Program
• 83.12 § (i) & (j) – Mediation Session

• 83.7 – Arbitration
• 83.7-2 – Actions Subject to Arbitration
• 83.7-3 – Referral to Arbitration
• 83.7-5 – Arbitration Hearing
• 83.7-7 – Trial De Novo
• 83.11 – Mediation
• 83.11-3 – Actions Subject to Mediation
• 83.11-5 – The Mediation Session
• 83.12 – Early Neutral Evaluation
• 83.12-3 – Actions Subject to Early Neutral Evaluation
• 83.12-5 – Written Evaluation Statements
• 83.12-7 – Procedures at Mediation Sessions

• 16.2(b) – Actions Subject to Arbitration
• 16.2(d) – Procedure for Consenting to Arbitration
• 16.2(e) – Arbitration Hearing and Schedule
• 16.2(f) – Arbitration Hearing: Schedule
• 16.2(i) – Trial De Novo

• 28.2 -- Mandatory Submission of Actions to Arbitration
• 28.6 -- Scheduling of Arbitration Hearings
• 28.7 -- Defaults
• 28.8 -- Conduct of Arbitration Hearings
• 28.11 -- Award
• 28.12 -- Trial De Novo
• 28.13 -- Motion to Vacate Award

• § 7501 -- Effect of Arbitration Agreement
• § 7502(a) -- Application to Compel Arbitration
• § 7503(c) -- Notice of Intention to Arbitrate
• § 7506(b) -- Time and Place of Arbitration
• § 7506(c) -- Evidence
• § 7507 -- Form of Award and Time of Delivery
• § 7509 -- Modification of Award by Arbitrator
• § 7511 -- Vacating or Modifying Award
• § 7511(b) -- Grounds for Vacating
• § 7511(d) -- Rehearing
• §7513 -- Fees and Expenses

The United State's District Courts located in New York are divided into four districts, each of which has independent local rules for arbitration, mediation or generally alternative dispute resolution. The Eastern and Southern Districts share local rules, but when it comes to ADR, each district provides an independent scheme. The Northern and Western Districts have their own sets of local rules, which contain a section on ADR.

There are two provisions in the local rules which govern ADR in the Eastern District. Local Civil Rule 83.10, Court-Annexed Arbitration, provides compulsory arbitration for eligible cases; while Local Civil Rule 83.11, Court-Annexed Mediation, provides a mediation option for those parties who are interested.

Local Civil Rule 83.10 - Court-Annexed Arbitration

Local Civil Rule 83.10 (d) provides mandatory arbitration to eligible cases. Section (d)(1) states that all civil cases where only money damages are being sought, and the amount is not in excess of $150,000 exclusive of interest and costs are eligible for mandatory arbitration. Cases specifically excluded by §(d)(1) are: social security cases, tax matters, prisoners' civil rights cases and any action based on an alleged violation of a right secured by the Constitution of the United States or if jurisdiction is based in whole or in part on Title 28 U.S.C. §1343.

For those cases in which the parties wish to arbitrate, but which fall out of the purview of § (d)(1); section (d)(2) provides arbitration for any case where the parties by written stipulation agree to abide by the court's compulsory arbitration scheme.

Local Civil Rule 83.10 (e)(1) provides the timing process which a case is likely to go through. Once a case has been filed, the complaint answered, and determined eligible for arbitration, a notice will be sent to counsel with a scheduled arbitration hearing. Expect the clerk to assign a hearing date for roughly four months (no more than 120 days) after the answer was filed. If one of the following motions was timely filed, expect the arbitration hearing to be roughly 30 days after the disposition of the motion.

• Motion to Dismiss the Complaint
• Motion for Judgment on the Pleadings
• Motion to Join Necessary Parties or
• Motion for Summary Judgment

If a third party has been brought into the action, the notice will be sent when an answer is filed by the third party.

The notice will also advise counsel of two additional facts. First, an earlier arbitration hearing may be scheduled as long as the clerk is notified within 30 days of the date of the notice. Second, counsel is afforded 90 days to complete discovery, unless the assigned judge has ordered a shorter or longer period of time. Additionally, the case may be referred to a magistrate for the purpose of discovery.

The court may, sua sponte (on its own volition), or on motion of the party, exempt any case from arbitration because the case involves complex or novel issues, legal issues predominate over factual issues or for other good cause.

A motion to exempt from compulsory arbitration should be made by written letter to the court, no longer than three pages. It should outline the basis for the exemption and include as attachments any relevant material. Lastly, it should be submitted no later than 20 days after receiving the notice of the arbitration hearing. Opposing counsel has three days after receiving the exemption letter to submit a responsive letter which should also be no more than three pages long and have relevant material attached.

At the discretion of the assigned judge, a case not originally found to be eligible for arbitration, but which later qualifies, may be referred to arbitration. If the case exceeds the $150,000 ceiling, the judge may suggest that the parties consider arbitration, and if they agree the appropriate consent forms should be signed prior to scheduling an arbitration hearing.

The arbitration will generally be held in front of one arbitrator, unless a panel of three arbitrators is requested by the parties. If the amount in controversy is $5,000 or less, the arbitration will be in front of one arbitrator.

The arbitration hearing will take place in a United States courthouse on the time and date specified in the notice. If a party is not present, the hearing may proceed if after notice the party in question still fails to be present. If during the hearing a party fails to participate in a meaningful manner, the Court may impose sanctions, including but not limited to, the striking of any demand for a trial de novo filed by that party. A party may have a recording and transcript made of the hearing, although all arrangements and expensed are borne by that party.

Rule 45 of the Federal Rules of Civil Procedure applies to subpoenas for attendance of a witness and the production of documentary evidence at the hearing. All witnesses are to testify under oath or affirmation.

The Federal Rules of Evidence at to be followed as to the admissibility of evidence. Copies of all exhibits, except those intended for impeachment, must be marked for identification and delivered to opposing parties at least ten (10) days prior to the hearing. The arbitrator may refuse to move any exhibit into evidence if a copy of it has not been delivered to opposing parties.

The arbitrator shall move into evidence any exhibit without a formal offer of proof. The opposing party must give notice five (5) days prior to the hearing that they intend to raise an issue regarding the authenticity of an exhibit. Under those circumstances, counsel shall not attempt to move that exhibit into evidence.

The arbitration award is filed immediately after the hearing and is entered as a judgment 30 days after the hearing, unless a party has demanded a trial de novo. The contents of the arbitration award will not be made known to any judge who might be assigned the case, until the district court has entered final judgement in the action. Costs may be taxed as part of any arbitration award pursuant to Title 28, U.S.C. §1920.

Within 30 days after the arbitration award is entered, any party may demand in writing to the arbitration clerk a trial de novo in the district court. Upon demanding a trial de novo, the moving party will deposit with the clerk of the court an amount equal to the arbitration fees of the arbitrators ($250 generally, see 83.10 (b)). The sum will be refunded to the party if they obtain a final judgment more favorable than the arbitration award. If the moving party obtains a less favorable result after trial, or the court determines that the party’s conduct in seeking a trial de novo was in bad faith, the sum will be paid to the Treasury of the United States. During the trial de novo, the court will not admit any evidence regarding the arbitration. Withdrawal of a demand for a trial de novo does not reinstate the arbitrators’ award. The case will proceed as if it had not been arbitrated.

Local Rule 83.11 – Court Annexed Mediation

Cases are eligible for mediation based on a designation and order from a Judge or Magistrate Judge. Parties may consent to mediation by preparing and executing a stipulation signed by all parties. The deadline for inclusion in the mediation program shall not exceed six months from the date of entry on the docket. Once a mediator is chosen (either by the court or individually by the parties), the mediator will contact the parties and set up the first mediation session (usually within 30 days of being appointed mediator or as the court may establish).

The mediator will expect a written mediation statement no less than seven days prior to the first mediation session. The statement shall not exceed ten pages double-spaced, not including exhibits, outlining the key facts and legal issues in the case. Additionally, the statement should contain a description of the motions filed to that point, their status, and any information that will advance settlement or make mediation more productive. Judges will not have access to the mediation statements.

During the first mediation session, the mediator will meet with both parties in a joint session. The mediator will explain the mediation process and give each party an opportunity to explain his or her views about the matters in dispute. After the joint session, the mediator will caucus individually with the parties. This permits the mediator to more fully understand the parties needs and possible underlying interests. Since the mediation is settlement focused, the caucus allows the mediator to offer specific settlement suggestions or develop with the parties a creative settlement proposal. The mediation ends when the parties reach a mutually acceptable resolution, or when the court imposed mediation deadline expires. The mediator has no power to impose a settlement, and all negotiations are confidential, regardless of settlement.

If a settlement is reached, the agreement is binding on all parties. Counsel will put the agreement into writing and file a stipulation of dismissal. If a settlement is not reached, the mediator will notify the Clerk's office, and the case will continue the litigation process.

In Myers v. Wiederhol, 185 F.R.D. 149 (E.D.N.Y. 1999), a case of first impression in the Eastern District, Plaintiffs appealed for a trial de novo after one plaintiff failed to appear at the two arbitration hearings; the other plaintiff, although in attendance at one hearing, acted half-heartedly; and plaintiffs' counsel participated indifferently during the proceedings. The court held that this behavior did not rise to the level of "not acting in a meaningful manner" as prescribed by 83.10(f)(3), so as to deprive the plaintiffs' of a trial de novo.

In a persuasive and analogous case where a demand for a trial de novo was struck, the parties, the parties counsel and named witnessed failed to appear for the arbitration hearing. The Eastern District noted that under those circumstances striking the appeal was appropriate as the party's actions exhibited an utter disregard for the arbitration process by completely refusing to participate or attend. Since the single plaintiff and plaintiffs' counsel appeared during the hearings, the court was reluctant to deprive the plaintiff's of their day in court.

Although the Plaintiffs' were allowed to appeal trial de novo, Plaintiffs' counsel was sanctioned the costs of the arbitration due to his indifferent attitude during the hearings. The court further notes the importance of compulsory arbitration and ends with a warning from a District Court in New Jersey:

The Southern District has one specific rule which governs ADR. Local Civil Rule 83.12, Alternative Dispute Resolution, provides for an ADR program of court imposed mediation.

All civil cases, except social security, tax, prisoner civil rights and pro se matters are eligible for the program. In all eligible civil cases, each party should consider the use of mediation and shall report to the assigned Judge at the initial case management conference whether the party believes mediation may facilitate settlement. The assigned Judge will determine that a case is appropriate for mediation and may order that case to mediation without consent of the parties. The parties, if interested in mediation, may notify the assigned Judge and Staff Counsel at any time by filing a stipulation signed by all parties.

No less than seven days before the scheduled mediation, each party shall prepare and forward to the mediator a memorandum presenting the party’s contentions as to liability, damages, and the status of any settlement negotiations. The memorandum should not exceed ten pages, double-spaced, and should not be sent to the opposing parties.

The attorney primarily responsible for each party’s case shall personally attend the first mediation session, and shall be fully authorized to resolve the matter and prepared to discuss all liability issues, damage issues, and the party’s settlement position.

The mediation ends when the parties reach a resolution of some or all of the issues in the case or where the mediator concludes that a resolution is impossible. If a mutually acceptable resolution is reached, a binding agreement shall be signed by all parties, and a stipulation of discontinuance filed. Where a resolution is not reached, the Judge will be notified promptly.

The Northern District has one concise section of their local rules devoted to ADR. Northern District Local Rules, Section X, Alternative Dispute Resolution and General Provisions, provides for a consensual arbitration program, a supplemental mediation program, and a mediation like early neutral evaluation program.

83.7 – Arbitration

The parties to any civil case may consent to non-binding arbitration. Consent to arbitration should be discussed at the pretrial/scheduling conference. If the parties consent, the Judge shall refer the case to the arbitration process. The plaintiff is responsible for getting the execution of the consent form by the parties, and must file the form with the clerk of the court within ten days after receiving the form by the parties.

The case will be referred to arbitration twenty days after the filing of the last responsive pleading or within twenty days of the filing of a stipulated consent order referring the action to arbitration, whichever occurs last. If a party files a motion to dismiss (Fed. R. Civ. P. 12 (a)and/or (b)), a motion to join, or a motion for summary judgment (Fed. R. Civ. P. 56) prior to the expiration of the twenty day period, referral to arbitration is postponed until the motions are heard and ruled on. If the case survives a motion to dismiss, it will be referred to arbitration twenty days after the filing of the decision.

Expect the date of the arbitration hearing to be five months, but no later than 180 days from the date the answer was filed. If a motion to dismiss the complaint, motion for judgment on the pleadings, or motion to join necessary parties is filed (within twenty days of filing the last responsive pleading), than the arbitration hearing will not commence until thirty days after the disposition of the motion(s). Discovery is allocated 120 days, unless the Judge has ordered a different amount of time.

The hearing will be held at any location within the Northern District of New York designated by he arbitrator. If a party is not present, the hearing may proceed if after notice the party in question still fails to be present. If during the hearing a party fails to participate in a meaningful manner, the Court may impose sanctions, including but not limited to, the striking of any demand for a trial de novo filed by that party.

All testimony during the hearing, must be given under oath. Each party has the right to cross-examine a witness. A party wishing to use a document otherwise subject to hearsay objections shall serve a copy on the opposing party not less than ten days in advance of the hearing. Any hearsay objection will be waived, unless the opposing party gives written notice in advance of the hearing of their intent to cross-examine the author of the document.

There shell be no ex parte communication between an arbitrator and any attorney or party on any matter regarding the action except for scheduling purposes or continuing the hearing.

A party must file a written demand for a Trial De Novo within 30 days of entry of the arbitration judgment. Judgment will then be immediately vacated by the clerk and the action will proceed in the normal manner before the assigned judge. The court shall not admit any evidence from the arbitration unless, the parties have stipulated to it, or the evidence would be admissible in the court under the Federal Rules of Evidence.

The party requesting a trial de novo shall deposit with the clerk, the cost of the arbitrator's service as a prerequisite to trial. If the requesting party fails to obtain a more favorable result through trial, the clerk will retain the funds. If the result is more favorable, the prepaid costs will be reimbursed.

In the situation where a party has rejected an arbitration award and the case proceeds to trial, that party shall pay the opposing party's actual costs unless the trial verdict is more favorable to the rejecting party than the arbitrator's award. If the opposing party has also rejected the arbitration award, the party is entitled to costs only, if the verdict is more favorable to that party than the arbitrator's award.

• Actual costs, which include fees and costs taxable in any civil action and attorney's fees for each day of trial not to exceed $500.
• For good cause shown, the court shall order relief from payment of any or all costs.
• This costs provision does not apply when the United States or one of its agencies is a party.

The court may refer any civil case to mediation, any party can motion for their case to be mediated, or the parties can consent to mediation. Any case referred to mediation may be withdrawn from mediation by application made to the assigned Judge within ten days prior to the scheduled mediation session.

At least two days prior to the mediation, each party shall provide a "memorandum for mediation" to the mediator and the opposing parties. The memo should:

• State the name and role of each person expected to attend the mediation;
• Identify each person with full settlement authority;
• Include a concise summary of the parties' claims or defenses;
• Discuss liability and damages; and
• State the relief sought by such party.
• Not exceed five pages, and shall not be filed at the court or made part of the court file.

The attorney who is expecting to try the case must appear at the mediation session along with an individual with authority to settle the lawsuit. All parties should participate in good faith, without any time constraints, and make their best efforts toward a settlement.

During the first meeting, the mediator will meet with both parties jointly. Thereafter, an additional meeting will occur with the parties individually. During these meetings the parties are expected to participate in crafting a resolution of the dispute. Everything prepared for and done during the mediation is confidential.

At the discretion of the mediator, a mediation session may proceed in the absence of a party, who, after notice, fails to be present. Absent good cause, the court may impose sanctions on any party who fails to attend or participate in the mediation session in good faith.

The mediation has concluded when:

• The parties agree on a resolution and settlement of the dispute;
• The parties and the mediator agree to adjourn for future mediation; or
• The mediator decides that an impasse has been reached, and that future efforts to resolve the dispute are no longer worthwhile.

Immediately upon the conclusion of the mediation, the mediator will file a mediation report with the ADR clerk indicating whether the case settled, settled in part, or did not settle.

• If the parties did reach a settlement, all parties will promptly notify the ADR clerk and file the appropriate stipulation of dismissal.
• If the parties reach a partial settlement, a stipulation concisely describing the resolved claims will be submitted within five days after the mediation.
• If no settlement was agreed upon, the case will proceed toward trial.

The early neutral evaluation (ENE) program of the Northern District is a process which resembles both mediation and non-binding arbitration. The ENE process begins during the early pre-trial period (usually within 150-200 days after the complaint was filed). The parties will meet with a court appointed evaluator, who has expertise in the area of law which the case involves. During this meeting, the parties will present to the evaluator the factual and legal basis for their respective positions. The evaluator will determine what the real issues in the case are, and explore settlement options. If settlement does not occur, the evaluator will offer his opinion as to the settlement value of the case, the likelihood of liability, and the possible range of damages. With this knowledge, the parties are encouraged to discuss settlement, with or without the evaluator. The evaluator has no power to impose a settlement or to dictate an agreement. Regardless of the result, the ENE process is confidential.

The court may refer any civil case to ENE, any party can motion for their case to be evaluated, or the parties can consent to ENE. Any case referred to ENE may be withdrawn from the process by application made to the assigned Judge within ten days prior to the scheduled evaluation session.

No later than 10 calendar days prior to the ENE session, each party shall submit directly to the evaluator and all other parties, a written evaluation statement not to exceed ten pages, not including exhibits and attachments. The statements should not be filed at the court. The statements must:

• Identify person(s), in addition to counsel, who will attend the ENE session and who have decision making authority;
• Address whether early resolution of the legal or factual issues of the case may contribute to a settlement or reduce the scope of the dispute; and
• Identify the discovery that will contribute most to meaningful settlement negotiations.

The evaluator has broad discretion as to how to conduct and structure the evaluation sessions. The rules of evidence do not apply and there is no formal examination or cross- examination of witnesses. The evaluator shall:

• Permit each party to make an oral presentation of its position;
• Help parties identify areas of agreement and enter stipulations, wherever feasible;
• Assess the relative strengths and weaknesses of the parties' positions and explain the reasons for the assessments;
• Help parties explore settlement;
• Estimate, where possible, the likelihood of liability and the range of damages;
• Help parties develop an information-sharing or discovery plan to expedite settlement discussions; and
• Determine if there are any follow-up measures that will contribute to case development or settlement.

The evaluator shall not:

• Compel parties or counsel to conduct or respond to discovery or to file motions; and
• Determine the issues in a case or impose limits on pretrial activities.

All evaluation proceedings are confidential.

Immediately upon the conclusion of the ENE session, the evaluator will file a report with the ADR clerk indicating whether the case settled, settled in part, or did not settle.

• If the parties did reach a settlement, all parties will promptly notify the ADR clerk and file the appropriate stipulation of dismissal.
• If the parties reach a partial settlement, a stipulation concisely describing the resolved claims will be submitted within five days after the mediation.
• If no settlement was agreed upon, the case will proceed toward trial.

Arbitration is the sole means of ADR recognized by the Western District's local rules. Rule 16.2, Arbitration, is the relevant section.

Arbitration is available for all civil actions.

Parties may consent to arbitration at any time prior to trial. Consent must be freely and knowingly given, and no party or attorney shall be prejudiced for refusing to participate in an arbitration.

The plaintiff is responsible for obtaining (from the Clerk) and executing (by all parties) the proper consent form. The Clerk shall offer the parties the option of waiving the right to a trial de novo, thereby making the arbitration binding.

After the last responsive pleading is filed, the Arbitration Clerk shall send a notice to counsel regarding the time, date, and location of the arbitration hearing. If the parties have filed a request for an immediate hearing, one shall be scheduled within thirty days of filing the request. In all other cases, the arbitration hearing will be scheduled no later than 180 days from the date the last responsive pleading was filed. If one of the following motions was filed and served within twenty days after the filing of the last responsive pleading, the arbitration hearing will not be conducted until thirty days after disposition by the court. These motions are a: Motion to Dismiss to Complaint, Motion for Judgment on the Pleadings, or Motion to Join Necessary Parties.

(1) Disclosure. The arbitrator will notify counsel as to whether the arbitrator or other firm member with which the arbitrator is affiliated, has been involved with or represented any parties to the arbitration within the last five years.

(2) Delivery of Exhibits and Witness Lists. At least ten days prior to the arbitration hearing, each counsel shall deliver to the arbitrator and to adverse counsel copies of all exhibits, including expert reports, depositions and interrogatories which will be used during the hearing. Documents excluded include those which are intended solely for impeachment. Additionally, a list of all witnesses who are to testify at the hearing should be included. Failure to deliver any exhibit within the time period may result in the exclusion of that exhibit at the arbitration hearing.

Within thirty days after the arbitration award is filed, any party may demand a trial de novo in the District Court on any or all issues presented at the arbitration hearing. If one party requests a trial de novo on fewer than all issues of the case, any other party may, within ten days after the original demand for trial de novo is filed, request a trial de novo on any or all other issues. The party demanding trial de novo shall serve a written demand upon each counsel of record and upon any party not represented by counsel.

There are two main sources of statutory regulation regarding ADR in the New York State court system. If the Chief Administrator of the Courts has established an arbitration program, in the court where the action was filed, Part 28 of the Rules of the Chief Judge, Alternative Method of Dispute Resolution by Arbitration, controls. If on the other hand, the parties have agreed in writing to arbitrate a claim, than Civil Practice and Law Rule article 75, Arbitration, will control.

28.2 – Mandatory Submission of Actions to Arbitration

28.2(b) - All civil cases involving money, will be heard and decided by a panel of arbitrators if the case is:

• not commenced in small claims court,
• noticed for trial or commenced in the Supreme Court, County Court, the Civil Court of the City of New York, a District Court or a City Court, and
• seeking recovery in the amount of $6,000 or less, or $10,000 or less in the Civil Court in the City of New York.

28.6(b) – A hearing date will be scheduled not less than 15 nor more than 30 days after the case is assigned. Parties and arbitration panel members will receive a written notice at least 10 days before the date is set.

28.6(c) – If a hearing cannot be scheduled within 30 days after the case is assigned, the arbitration commissioner will be notified and the action will be marked as continued on the arbitration calendar.

28.6(d) – Any action continued twice, after being assigned to two different panels, shall be referred to the commissioner for a hearing on the cause of the inability to hold an arbitration hearing. Upon such hearing, the court may order a dismissal, authorize the entry of judgment by default, or refer the action to the commissioner for assignment to another panel.

28.7(a) – Where a party fails to appear at the hearing, the panel will proceed with the hearing. The panel will make and award and decision based on the facts and circumstances of the action. The judgment, the default, and award may be vacated and the action may be restored to the arbitration calendar only upon order of the court. Upon moving to restore the case to arbitration, the moving party will pay into the court an amount equal to the total fees payable by the administrative office for the courts to the arbitration panel.

28.7(b) – If both parties fail to appear at the hearing, the panel must file an award dismissing the action. The action may be restored to the arbitration calendar only upon an order of the court. Such order or restoration may provide for the payment by any party into the court the arbitration panel fees.

28.8(a) – The hearing will be conducted with regard to law and established rules of evidence, which shall be liberally construed to promote justice. Regarding personal injury cases, medical proof may be established by entering into evidence medical reports of physicians upon stipulation of all parties.

28.8(b) – The panel shall have the general powers of a court, including but not limited to:

• subpoenaing witnesses to appear;
• subpoenaing books, papers, documents, and other items of evidence;
• administering oaths or affirmations;
• determining the admissibility of evidence and the form in which it is to be offered;
• deciding questions of law and facts in the actions submitted to them.

28.11(a) – A chairperson of the panel will file a report and award with the commissioner within 20 days after the hearing, and will mail or deliver copies to the parties.

28.11(b) – Unless a demand is made for trial de novo, or vacation of the award, the award shall be final and judgment shall be entered.

28.12(a) – Any party not in default may file for trial de novo within 30 days after filing of the arbitration award (35 days if service was made by mail). Filing must be made where the award was filed and all adverse parties must be served.

28.12(c) – The party demanding the trial de novo shall at the time of filing also pay to the clerk of the court the amount of the fees payable to the arbitration panel. Where a judicial hearing officer has heard the case, the amount payable is the same as if an arbitrator heard the case. This sum is not recoverable upon a trial de novo or other proceeding.

28.12(e) – If the judgment upon the trial de novo is not more favorable than the arbitration award regarding damages or type of relief granted, the demandant shall not recover interest or statutory costs and disbursements, but shall pay such statutory costs and disbursements to the other party from the time of filing the demand for trial de novo.

Any party, except one who had demanded a trial de novo, may within 30 days after the award is filed, serve all other parties and the court clerk a motion to vacate the award on the grounds of any of the following prejudice, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection. The prejudice includes:

• there was corruption, fraud or misconduct in procuring the award;
• the panel making the award exceeded its power or so imperfectly executed it that a final and definite award was not made; or
• there was substantial failure to follow the procedures established by or pursuant to these rules.

§ 7501 – Effect of Arbitration Agreement

If the parties have a written agreement to submit any controversy to arbitration, it is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter, the court shall not consider whether the claim is tenable, or otherwise pass upon the merits of the dispute.

Application must be made to the court by a special proceeding, if the controversy is not a currently pending action.

If a party is adversely affected by the failure of another to arbitrate, an order compelling arbitration may be requested. Where there is no substantial question as to whether a valid agreement was made or complied with, and the claim is not barred by the statute of limitations, the court shall direct the parties to arbitrate.

A demand for arbitration or a notice of intention to arbitrate may be served upon another party specifying the agreement that gave rise to the arbitration and the name and address of the party serving the notice. Additionally, the notice must state that unless the party served applies to stay the arbitration within twenty days after service, they are precluded from objecting that a valid agreement was not made or has not been complied with, and from asserting in court the bar of a limitation of time. The notice should be served in the same manner as a summons.

The arbitrator shall choose the time and location for the arbitration, and shall notify the parties in writing not less than eight days before the arbitration.

The parties are entitled to be heard, present evidence and to cross-examine witnesses. Notwithstanding the failure of a party of a party notified to appear, the arbitrator may hear and determine the controversy upon the evidence produced.

The award shall be in writing, signed and affirmed by the arbitrator making it, within the time fixed by the agreement. A party may extend the time, before or after expiration, by writing. A party waives the objection that an award was not made within the time required unless he notifies the arbitrator in writing of his objection prior of the delivery of the award.

Within 20 days after the delivery of the award, a party may make written application that the arbitrator modify the award for certain grounds. § 7511(c) provides the relevant grounds, which include:

• a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award; or
• the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
• the award is imperfect in a matter of form, not affecting the merits of the controversy.

Written notice of the application shall be given to all other parties to the arbitration. Written objection to modification must be served on the arbitrators and other parties within 10 days of receipt of the notice. The arbitrators shall dispose of any application for modification within 30 days after either written objection to modification has been served on them or the time for serving the objection has expired , whichever is earlier.

An application to vacate or modify an award may be made by a party within 90 days after its delivery.

The award shall be vacated if the rights of the party were prejudiced by:

• corruption, fraud or misconduct in procuring the award; or
• partiality of an arbitrator appointed as a neutral, except where the award was by confession; or
• an arbitrator, or agency or person making the awards exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
• failure to follow the procedure of this article, unless the party moving to vacate continued with the arbitration with notice of the defect and without objection.

• the rights of that party were prejudiced by one of the grounds specified above; or
• a valid agreement to arbitrate was not made; or
• the agreement to arbitrate had not been complied with; or
• the arbitrated claim was barred by limitation of time.

Unless otherwise provided for in the agreement to arbitrate, all fees shall be paid as provided in the award. The court upon application may reduce or disallow any fee or expense it finds excessive or allocate it as justice requires.

This document is intended as a summary of the ADR rules of the state of New York. Only the rules which a practitioner would foreseeable need to refer to, under a regular case, are included. Additionally, these rules are summarized and edited from their original version for ease of reading and understanding. Information contained herein is for educational purposes only. When in doubt, look up the official version of the rule or case. Where possible, a link is provided to the official court web site and/or the cited rules. However, if a link is missing, there was no public web site at the time of researching. No responsibility is taken for the accuracy of linked web sites or any information contained therein.