ADR and litigation involving social problems.

• Author: Banks, Steven

INTRODUCTION

This Essay draws on my experience in the alternative dispute resolution ("ADR") field, which is based largely on my role as counsel in the McCain litigation on behalf of homeless children and their families in New York City ("the City") in which court rulings and orders require the provision of safe, suitable, and adequate emergency housing, assistance, and services. (1)

John Feerick (2) was a member of a Special Master Panel in the McCain litigation, and my colleagues at The Legal Aid Society and I had the opportunity to work closely with him during his two-year tenure in that role. As a Special Master in that litigation, he made a number of significant systemic reform recommendations calling for the government to redouble its efforts to prevent family homelessness, and to provide increased access to permanent housing to alleviate family homelessness.

Kenneth Feinberg (3) served as a Special Master in the McCain litigation before John Feerick. Mr. Feinberg made significant contributions by devising dispute resolution mechanisms that preserved the core legal right of class member homeless children and their families to receive lawful shelter and services, while at the same time freeing the court, the plaintiff class, and the government defendants of the need for ongoing motion practice to enforce those rights.

This Essay will address the remarks of the Corporation Counsel of the City of New York, Michael Cardozo, (4) regarding the use of ADR in legal disputes involving municipal government, and will highlight the special responsibilities of class counsel in the ADR context in class action litigation on behalf of vulnerable families and individuals.

1. USING ADR TO RESOLVE DISPUTES INVOLVING SOCIAL PROBLEMS

   Michael Cardozo has concluded that ADR can be a constructive method to resolve public policy disputes--which he calls "social problem" litigation--"in the right case, at the right time, with the right processes, and with the right mediator." (5) I agree with that assessment. For example, mediation efforts made before juvenile delinquency charges are filed in family court could avert many of the cases in which young people in New York City are prosecuted in delinquency proceedings. In such cases, The Legal Aid Society's Juvenile Rights Practice is appointed to represent children between the ages of seven and fifteen who are charged with misconduct. The City's Office of the Corporation Counsel serves as the prosecutor in these delinquency cases. (6) The forum in which delinquency cases are heard is the New York City Family Court. (7)

   Annually, the Society's Juvenile Rights staff represents some 4000 children in these juvenile delinquency cases. (8) A substantial number of these cases could be diverted from prosecution through mediation before the filing of delinquency charges with the aim of putting in place an appropriate service plan to prevent the charged misconduct from occurring in the future. Such an ADR-grounded approach could prevent children from suffering the immediate trauma and potential long-term stigma of a juvenile delinquency prosecution, let alone a juvenile delinquency adjudication.

   At the same time, such pre-filing mediation would conserve limited judicial resources in the overburdened family court, as well as target prosecutorial and defense resources for more substantial delinquency cases. Overall, the juvenile justice system would be well served by implementing a pilot pre-filing ADR system to divert potential delinquency cases.

   In light of the clear benefits that can readily be obtained for vulnerable children through a pre-litigation ADR process, these cases meet Michael Cardozo's "right case, at the right time, with the right processes" standard. (9) At the same time, finding "the right mediator" can certainly be achieved, (10) especially with potentially skilled mediators receiving training and experience at the Feerick Center in how to address social problems grounded in a legal framework where ADR participants come to the mediation table with underlying enforceable legal rights.

   In other "social problem" contexts, I also believe that it is appropriate to try to resolve disputes without litigation whenever possible. Toward that end, at The Legal Aid Society we provide the government with prior notice of potential "social problem" litigation to the extent that it is practicable. In some cases, the client needs may be so pressing, and health and safety concerns may be so paramount that only very limited prior notice can be provided. In other cases, more extensive prior notice is provided. In all cases, client interests must be the determining factor with respect to the prior notice process.

   Unfortunately, experience at The Legal Aid Society over the last three decades has shown that the governmental response to prior notice of potential litigation is decidedly mixed. For individual clients, the governmental bureaucracy frequently cannot move quickly enough, and litigation is all too often the only viable option to prevent irreparable harm to clients. In other cases, where systemic reform is clearly needed, multiple government agencies and multiple levels of government may be unable to address client problems in a meaningful and comprehensive way without a classwide order. (11) Even when such a class-wide order is in place, administrations and commissioners come and go and government defendants can easily fall out of compliance without enforceable relief in place to protect vulnerable class member children and adults from the same harm that the original plaintiffs experienced. (12)

2. EXAMPLES OF "SOCIAL PROBLEM" LITIGATION AND THE NEED FOR ENFORCEABLE RELIEF

   Michael Cardozo cites three examples of seemingly successful ADR resolutions of "social problem" litigation--Sheppard, Marisol, and McCain. (13) Each of these cases, however, is...