(d)
Mandatory civil appeals mediation program.
(1) Establishment, purpose and scope of program. The Appellate Division, Second Department hereby establishes a mandatory civil appeal mediation program (the program). Appeals from orders of the Family Court are excluded from this requirement, provided, however, that counsel and the parties to perfected Family Court appeals involving the custody of, or access to, children may jointly request, by letter application to the clerk of the court, that the particular appeal be designated for mediation.
(2) Mandatory mediation; notice of reference.
(i) The clerk of the court shall cause civil appeals which have been perfected to be designated for mandatory mediation.
(ii) Upon such designation, the clerk of the court, shall cause to be issued a notice of reference, which shall direct the parties to the appeal and their counsel, as well as any other individual whose attendance the court may require, to attend an initial, 90-minute session, without charge, before a designated special master identified in that notice. The notice of reference shall set forth the date, time, and place of the initial mediation session. Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions and parties who are natural persons are required to attend the mediation in person. In the event that a party is not a natural person but a legal entity, such as a corporation or limited liability company, such entity is required to have present at the mediation a representative of the entity who has the authority to make binding decisions on behalf of the entity.
(iii) Parties and counsel who wish to continue mediation beyond the initial 90-minute session may continue that session or schedule additional sessions as agreed upon with the special master. Special masters shall be entitled to receive such compensation from the parties for such continued or additional sessions as may be agreed upon in writing, provided that the initial session shall remain free-of-charge. At the conclusion of the mediation the special master shall not serve in any other capacity relative to the litigation that was the subject of the mediation without the consent of the parties.
(iv) Requests for adjournments shall be addressed by e-mail to the special master, with copies sent simultaneously to all counsel or unrepresented parties. Such requests shall be determined by the special master, whose determination shall be final. Absent unusual circumstances, no adjournment shall be granted unless requested at least three business days prior to the scheduled date. In no event may the initial mediation be adjourned more than three times or for a total of more than 30 days.
(v) Mediation sessions shall be deemed appearances before this court. Failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions pursuant to Part 130 of the Rules of the Chief Administer of the Courts (Part 130 of this Title). The initial mediation session shall constitute an actual engagement before this court for the purposes of Part 125 of the Rules of the Chief Administrator of the Courts (Part 125 of this Title).
(vi) At least five business days prior to the initial session, counsel to the parties, or a self-represented party, shall provide the special master with copies of the order or judgment appealed from, the decision of the trial court, the briefs or memoranda submitted by the parties to the trial court, the briefs, if any, filed with this court, and any other information necessary for the effective negotiation and resolution of the issues involved. The special master may request a conference call with both counsel regarding any preliminary matters.
(vii) Within five business days after the conclusion of the mediation sessions, the special master shall send a report (report of the special master) to the clerk of the court and to counsel for the parties stating the date of the initial session and whether each party and counsel appeared at the initial session, the dates of any subsequent scheduled sessions, whether the parties reached partial, complete, or no agreement on the issues, and whether a stipulation of withdrawal of the appeal has been executed. The special master shall not disclose any other information discussed during the mediation to the court, and the use of any such information is subject to CPLR section 4547.
(3) The role of the court.
The program is conducted under court auspices and pursuant to these rules. The pendency of mediation will not affect, or delay, the progress of the appeal on the court's calendar. Unless an agreement is reached in mediation and the appeal is wholly or partially withdrawn, the appeal will proceed in accordance with the regular processes of the court and will be heard and determined.
(4) The roster of special masters.
The clerk of the court shall maintain a list of approved special masters. It shall consist of individuals who the presiding justice of this court has concluded possess the requisite training and experience as well as the appropriate temperament, character, and discretion. Approved special masters may be add to and removed from the roster of special masters at the discretion of the presiding justice.
(5) Immunity.
Special masters serving in this program shall be immune from suit as a result of any conduct or omission during the performance of duties in that capacity to the extent permissible by law.