Southern District of Alabama
IN BRIEF
Process summary
Mediation.
In February 1995, the Southern District of Alabama adopted an alternative dispute resolution plan whose principal component is mediation. See below.
Other ADR.
In addition to mediation, the court's ADR plan grants litigants broad discretion to use any form of private ADR with court approval. The ADR plan provides that if the parties agree in writing to use arbitration, mediation/arbitration, or minitrial, the court will make its resources available to facilitate these forms of ADR. With the consent of the parties, the court will also approve use of the summary jury trial in appropriate cases.
Judicial settlement conferences.
In addition to the ADR plan, parties may request a settlement conference with a judge.
Of note
Evaluation.
Under the ADR plan, the clerk of court is directed to create a system for monitoring the impact of the mediation program, including tracking the time from filing to settlement or trial, assessing the mediator, and studying other features relevant to the merits of the program.
For more information
Deborah S. Hunt, Clerk of Court, 205-690-2371
IN DEPTH
Mediation in Alabama Southern
Overview
Description and authorization.
In February 1995, the Southern District of Alabama adopted, by general order, an alternative dispute resolution plan, which authorizes use of any form of ADR agreed to by the parties. The plan also authorizes mediation, which may be used if the parties agree or the judge orders, and sets out detailed rules for this process. Cases are referred to mediation on a case-by-case basis after the assigned judge discusses the case's suitability for mediation with the parties at the initial Rule 16 scheduling conference.
The court's mediation process is designed to help the parties devise better settlements and to improve relationships among litigants. The mediator, who may hold private caucuses with any party or counsel, facilitates discussions among the parties to help them identify underlying issues and develop a settlement. Generally, testimony is not taken during mediation sessions; however, with the consent of the mediator, the parties may produce witnesses to provide additional information. When necessary, the mediator may obtain expert advice concerning technical aspects of the dispute if the parties agree and pay the expert's fee. The parties pay a reasonable fee to the mediator, not to exceed $150 per hour unless the parties agree otherwise. The mediation process is confidential.
Number of cases.
This information is not yet available.
Case selection
Eligibility of cases.
All civil cases are potentially eligible for mediation. Each judge decides which cases or types of cases should be referred to or excluded from mediation.
Referral method.
The ADR plan encourages each judge to evaluate whether a case will benefit from ADR and to decide, after consulting with the parties, whether ADR should be used. If the parties agree to an ADR process, the judge issues an order of referral. If the parties do not request or agree on a form of ADR and the judge believes the case would benefit from ADR, the judge may order the case to mediation.
Opt-out or removal.
When the judge refers a case to mediation on his or her own motion, a party may object by filing a request for reconsideration within ten days of the judge's order. Mediation will be stayed pending decision on this request.
Scheduling
Referral.
The plan encourages the judge to determine the appropriateness of ADR at the initial Rule 16 scheduling conference and to schedule the ADR session as soon as possible. If a case is considered appropriate for ADR at a later stage in the litigation, the ADR session must occur within thirty days of the close of discovery so as not to delay trial.
Written submissions.
At least five days before the mediation conference, the parties must submit the following to the mediator: (1) copies of relevant pleadings and motions; (2) a short, confidential memo stating the legal and factual positions of each party; and (3) any other materials the party believes would assist the mediator. After receiving these items, the mediator may, at his or her discretion or at a party's request, schedule a preliminary meeting with counsel.
Mediation session.
The mediator sets the date and time of each mediation session. Sessions may be held at any location agreeable to the parties and mediator.
Number and length of sessions.
This information is not yet available.
Program features
Discovery and motions.
Proceedings in the case are not automatically stayed by mediation. If a party makes a motion, the court may for good cause stay certain proceedings for a specified time.
Party roles and sanctions.
The attorney who is primarily responsible for the case and who is expected to try the case must personally attend the mediation session and must be prepared to discuss all relevant issues, including settlement. The parties must also be present. When the party is not an individual or is being represented by an insurance company, an authorized representative of the party or insurance company must attend, with full authority to settle. The mediator must report to the court failure of a party or representative to attend, and the court may impose sanctions. Persons other than parties and their representatives may attend only with consent of all parties and the mediator.
Outcome.
The mediator must report the results of the mediation process to the court as follows: (1) If a settlement is reached, a party prepares a written summary of the agreement; the parties and their representatives sign the summary; and the mediator reports to the court whether a consent order, a stipulation of dismissal, or other document will be filed and by what date. (2) If a settlement is not reached, the mediator reports that a mediation conference was held but that no settlement was reached. The mediator may not comment on the mediation to the court.
Confidentiality
. Mediation sessions are private and confidential. The mediator may not disclose to any party any information disclosed by the other party and identified as confidential. The parties are responsible for identifying any documents or communications that should not be revealed to other parties, including documents or other items submitted before the mediation conference.
The parties and mediator may not disclose the settlement terms to the court or any third persons without party agreement. The mediation process is treated as a compromise negotiation under federal and state rules of evidence. Information revealed in mediation and not otherwise known by the opposing party is inadmissible without a specific court ruling, and the mediator 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 mediation process.
Neutrals
Qualifications and training.
Persons selected for the court's panel of neutrals must have the following minimum qualifications: (1) membership in good standing in the Alabama bar and the bar of the district court and at least seven years of law practice, with at least 50% of that experience in litigation; (2) extensive documented experience as a mediator; (3) experience as a former judge of an Alabama trial court; or (4) experience as a former district, magistrate, or bankruptcy judge in any federal court in Alabama. A law degree is not required but is highly recommended. In addition, candidates must complete a mediation training course by a recognized group specializing in ADR. The training must include instruction in ethical issues relating to ADR. Panelists and others mediating a case under the ADR plan must also agree to be bound by the ADR plan. The court appoints candidates to the panel and may remove any panelist.
Selection for case.
Within ten days of the notice of referral the parties must select a mediator and file written notice of their selection. If they cannot agree within this time period, the judge selects the mediator and notifies the parties and the mediator. Parties may select the mediator from the court's panel of neutrals, or they may use a neutral who is not on the panel if the mediator signs an agreement to be bound by the rules of the court's ADR plan.
Disqualification.
If at any time during the mediation process, the mediator becomes aware of, or a party raises an issue concerning, the mediator's neutrality, the mediator must disclose to all parties the facts relevant to the issue. If a party believes that the mediator will not be impartial, the party may request that the mediator withdraw. When such a request is made, the mediator must immediately notify the court, who may then appoint another mediator. If the court selects the mediator, the court first determines if the mediator has any conflict of interest regarding any parties in the case and then notifies the parties of the selection.
Immunity.
The ADR plan does not address this issue.
Fees.
Unless otherwise agreed by the parties or ordered by the court, the parties must bear equally the expenses of the mediator or any witnesses or experts called by the mediator. The mediator is compensated at a rate agreed to by the parties or set by the court. The rate should not exceed $150 per hour unless parties agree otherwise. The fee must be paid within thirty days of receipt of a bill from the mediator and should be paid before disbursement of settlement funds. Parties may petition the court to review a mediator's fee as unreasonable or as deviating from the agreed-on fee, but must do so within ten days of receipt of the bill. To provide mediation to those who cannot afford the cost of ADR, each person serving on the panel must, if requested, serve as a neutral without compensation in at least one case annually.
Program administration
The mediation program is administered by 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