Northern District of Alabama
IN BRIEF
Process summary
Three-track ADR program.
The Northern District of Alabama has established an ADR program under the district's CJRA plan, effective December 1, 1993. See below.
Judicial settlement conferences.
All civil cases remain subject to settlement conferences with either a district judge or a magistrate judge.
Of note
Obligations of counsel.
Counsel or unrepresented parties must attend a conference with the court early in the litigation process to determine whether the case is appropriate for adr. Local Rule 16.1(c) also makes ADR a topic for discussion at all Rule 16 conferences. In addition, at the initial meeting of the parties pursuant to Fed. R. Civ. P. 26(f) and Local Rule 26(d), counsel are required to discuss the suitability of the case for ADR and to report the results of those discussions to the court.
Evaluation.
The court plans to conduct a formal evaluation of the ADR program. Currently, the program is being monitored closely and feedback is being sought informally from all participants.
For more information
Edwin L. Nelson, U. S.Di strict Judge, 205-731-1720
Ethel Self, Supervisor, Courtroom Operations, 205-731-1217
IN DEPTH
Three-Track ADR Program in Alabama Northern
Overview
Description and authorization.
The Northern District of Alabama established an ADR program under the district's CJRA plan, effective December 1, 1993. The program, which became fully operational in April 1994, offers litigants three primary ADR options or tracks-mediation, med-arb, and use of any private or court-sponsored dispute resolution method agreed to by the parties and approved by the assigned judge. Under the program, called the Three-Track ADR Program, counsel or unrepresented litigants must attend a conference with the court early in the litigation process to determine whether the case is appropriate for any kind of ADR. Unless specifically excluded by the court or by the assigned judge, all categories of cases may be considered for referral. Ordinarily, the court will not refer a case to ADR if any party objects. A court panel of trained, nonjudicial neutrals provides the mediation and med-arb services for fees paid by the litigants. Pro bono service is also provided for low-income litigants. If litigants choose private ADR, they select a private ADR provider.
On the Mediation Track, the most popular ADR process in the district to date, litigants meet with a mediator selected by the litigants or appointed by the court. The neutral may be, but is not required to be, an expert in the subject area of the dispute. The mediator facilitates in-depth settlement discussions among litigants to identify underlying issues and develop a settlement package.
The Mediation-Arbitration Track (Med/Arb) combines mediation and some features of arbitration. On this track, a dispute is first submitted to mediation. If the parties are unable to reach a mediated agreement, the neutral proceeds to the arbitration phase. During the arbitration phase, parties may present witnesses, documents, and other exhibits, and they may make oral presentations summarizing the facts and law. Based on these presentations, the neutral issues a nonbinding decision on the merits. The primary purpose of the med/arb track is to provide parties with an appraisal of the case's likely outcome at trial or in binding arbitration.
Under the flexible Open Track, parties may use any other form of ADR, either court-sponsored or private, with the approval of the assigned judge. The court hopes that the Open Track option will encourage litigants to explore any private or court ADR process suited to the case. A single ADR process or combination of ADR processes may be requested or crafted. The court will approve use of the summary jury trial in appropriate cases and if the parties request it.
Number of cases.
Between April and December 1994, approximately 100 cases were referred to ADR. With few exceptions, referrals were to the mediation track.
Case selection
Eligibility of cases.
All civil cases are eligible for ADR, except categories of cases expressly excluded by the court as a whole or by an individual judge for cases assigned to that judge. To date, no category of cases has been excluded by the court from the ADR process, but individual judges have excluded some cases or categories of cases assigned to them.
Referral method
. After consulting with the parties during the Rule 16 scheduling conference or at a special ADR evaluation conference called for that purpose, the assigned judge decides whether ADR should be used in the case. Ordinarily, the court will not refer a case to ADR over the objection of any party.
Opt-out or removal.
In any case, a party may move for reconsideration within ten days of an order referring a case to the ADR program.
Scheduling
Referral.
An ADR evaluation conference is held early in the case to determine whether ADR is appropriate.
Written submissions.
At least ten days before the ADR session, the parties must submit to the neutral copies of relevant pleadings and motions; a short memorandum stating the legal and factual positions of each party; and any other materials the parties believe would be beneficial to the neutral. Upon reviewing these items, the neutral may schedule a preliminary meeting with counsel.
ADR session.
The ADR session is held when sufficient discovery has been conducted so the parties understand the strengths and weaknesses of the case or at any earlier time by agreement of the parties and with approval of the court. The ADR plan does not set a time limit for the ADR process, but the judge referring a case to ADR will usually direct that the process be completed within a stated period. The neutral, after consultation with counsel, sets the date for each ADR session. Sessions are held at any location agreeable to the neutral and parties or as otherwise directed by the court.
Number and length of sessions.
The information is not yet available.
Program features
Discovery and motions.
After referral, other case proceedings are stayed for a period set by the court. If any party makes a motion, the court may for good cause shown extend the stay.
Party roles and sanctions.
The attorney primarily responsible for a party's case must attend the ADR session and be prepared and authorized to discuss all relevant issues, including settlement. The parties also must be present. When a party is not an individual or when a party's interests are being represented by an insurance company, a representative of the party or insurance company with full settlement authority must attend. Willful failure of a party to attend is reported by the neutral to the court, which may impose sanctions.
Outcome.
When a case is referred to the mediation track, the mediator must report the results of the mediation to the court. If settlement is reached, the mediator, or one of the parties at the mediator's request, must prepare a written statement of the settlement agreement for signing by the parties and filing for court approval. If settlement is not reached, the mediator must report in writing the following: "Mediation was held, but no agreements were reached."
When the referral is to the med/arb track and agreement is reached during the mediation phase, the neutral, or one of the parties at the neutral's request, must prepare a written statement of the settlement agreement for signing by the parties and filing for court approval. If settlement is not reached during mediation and the parties proceed to arbitration, the neutral delivers a written copy of the decision to each party and files a copy with the clerk of court.
De novo request.
When a case is referred to the med/arb track and the parties proceed to arbitration and do not agree to binding arbitration, they have thirty days to reject the arbitrator's decision. If it is not accepted and the case proceeds to trial, the rejecting party must obtain a better result at trial or pay to the other party all costs and attorney's fees incurred from the date the arbitrator received the notice rejecting the award.
Confidentiality.
All ADR processes offered by the court are confidential. By entering into any of them the parties agree not to disclose anything except the terms of settlement to the court or to third persons unless all parties agree otherwise. Parties, counsel, and neutrals may respond to confidential inquiries or surveys by persons authorized by the court to evaluate the ADR program. Information provided in such inquiries is confidential and is not identified with particular cases.
The ADR processes are considered compromise negotiations for purposes of federal and state rules of evidence. The neutral is disqualified as a witness, consultant, attorney, or expert in any pending or future action relating to the dispute, including actions between persons not parties to the ADR process.
No record is made during mediation or the mediation phase of med/arb. If the parties choose to present witnesses during the arbitration phase, the neutral may, with party consent, make a stenographic, audio, video, or other recording necessary to reach a fair decision.
Neutrals
Qualifications and training.
The court has established a panel of neutrals for the mediation and med/arb tracks. The panel is made up of people who have applied to the court and who, based on their training or experience, are considered by the judges to be qualified to serve as mediators and arbitrators. Any person placed on the panel may be removed for cause at the discretion of the chief judge.
Members of the panel of neutrals are expected to engage in training sufficient to qualify them to act as neutrals and to maintain their skills on a continuing basis. The court, which periodically notifies panel members of educational opportunities, has not established any formal court-sanctioned training program.
Selection for case.
When a case is referred to ADR, the parties are first given an opportunity to select a neutral. Within ten days of the court's notice of referral, they must give the court the name of their choice.
If the parties fail to agree on a neutral or fail to notify the court within the ten-day time period, the court sends the parties a list of the names of three proposed neutrals taken from the court's panel of neutrals. Each party then ranks the neutrals in order of preference and, within seven days of the date of the written notice, returns the list to the court. The court then selects one party's list at random, strikes the last name on that list, strikes the last name on the other party's list, and selects the remaining name as the neutral. If there are multiple parties not united in interest, the court adds the name of one proposed neutral for each additional party and then handles the returned lists as described above.
Disqualification
. If at any time during the ADR process the neutral becomes aware of, or a party raises, an issue concerning the neutral's impartiality, the neutral must disclose the relevant facts to all parties. If a party believes the neutral is not or cannot remain impartial, the party may request the neutral's withdrawal and the neutral must then withdraw and notify the court. The court will appoint another neutral.
Immunity
. The court has not addressed the issue of immunity for ADR neutrals. In the absence of other authority, the court will address the issue on a case-by-case basis.
Fees
. The neutral is compensated at a reasonable rate agreed to by the parties or set by the court. The fee is borne equally by the parties unless otherwise agreed by the parties or directed by the court. In an effort to provide ADR services for low-income litigants, the court encourages, but does not require, neutrals to serve without remuneration at least five hours a year.
Program administration
The court's ADR program is administered by a district judge with assistance from the clerk's office.
Excerpted from ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996, a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution