Northern District of California
IN BRIEF
Process summary
ADR multi-option program.
On July 1, 1993, the Northern District of California established the ADR Multi-Option Program in partial fulfillment of its responsibilities as a demonstration district under the Civil Justice Reform Act. Under the Multi-Option Program, which is authorized by ADR Local Rule 3, litigants in certain civil case types assigned to four pilot program judges are presumptively required to participate in one of the court's nonbinding ADR processes (listed below). In lieu of a court-connected process, litigants may substitute a similar process offered by a private provider. Through this experiment the court hopes to assess the potential of various ADR processes for different types of cases. See below.
Arbitration.
The Northern District of California is one of ten federal district courts authorized by 28 U.S.C. §§ 651-658 to establish a mandatory, nonbinding court-annexed arbitration program. See below.
Mediation
. The Northern District of California has established an experimental mediation program as part of the Multi-Option Program. See below.
Early neutral evaluation (ENE).
The Northern District of California authorizes automatic referral, at filing, of specified case types to early neutral evaluation. See below.
Other ADR.
The assigned judge may appoint a special master. Additional forms of ADR, such as the summary jury trial, are offered as part of the Multi-Option Program but are seldom chosen. In lieu of a court-connected process, litigants subject to the Multi-Option Program may select an ADR process offered by a private provider. Between January and September 1994, parties in seventeen cases selected a private ADR provider.
Early magistrate judge settlement conference.
Under the Multi-Option Program, participating litigants may choose an early magistrate judge settlement conference to fulfill the court's ADR requirements. Between January and September 1994, seventy-six cases were referred to an early magistrate judge settlement conference.
Judicial settlement conferences.
A significant number of cases are referred by the district judges for settlement conferences at later stages of the litigation. The referrals are generally to the magistrate judges.
Of note
Obligations of counsel.
In cases subject to the Multi-Option Program, counsel are required to discuss the ADR options for the case and, if possible, stipulate to an ADR process. In all cases, the filing party is required to serve on all other parties the court's brochure, Dispute Resolution Procedures in the Northern District of California. Each party in all civil cases except those exempted by Local Rule 16 must file, but need not serve on other parties, a certification of discussion and consideration of ADR options. The certification, signed by both client and counsel, indicates that they have read the court's brochure, discussed the available court-connected and private ADR options, and considered whether their case might benefit from any of them.
Information from court.
The court provides the brochure Dispute Resolution Procedures in the Northern District of California.
Evaluation.
An evaluation of the court's arbitration program is reported in Barbara Meierhoefer,
Court-Annexed Arbitration in Ten District Courts
(Federal Judicial Center 1990). An evaluation of the ENE program is reported in J. Rosenberg & H. J. Folberg, Alternative Dispute Resolution: An Empirical Analysis, 46 Stanford L. Rev. 1487 (July 1994). As a demonstration district under the CJRA, the court's ADR Multi-Option Program is included in the Federal Judicial Center's study of the five CJRA demonstration districts, which will be reported to Congress by the Judicial Conference in 1996.
For more information
Carroll DeAndreis, Administrative Assistant, ADR Programs, 415-556-3167
IN DEPTH
ADR Multi-Option Program in California Northern
Overview
Description and authorization.
On July 1, 1993, the Northern District of California established the ADR Multi-Option Program in partial fulfillment of its responsibilities as a demonstration district under the Civil Justice Reform Act. Initially, five judges participated in the experimental program; since one has left the bench, four now participate. They are Chief Judge Thelton E. Henderson and Judges Marilyn Hall Patel, Fern M. Smith, and Vaughn R. Walker.
Under the ADR Multi-Option Program, which is authorized by ADR Local Rule 3, litigants in certain civil case types are presumptively required to participate in one nonbinding process offered by the court, including mediation, arbitration, early neutral evaluation, or early magistrate judge settlement conference. In lieu of a court-connected process, litigants may substitute a similar process offered by a private provider. Selection of an ADR process is made during a conference call between counsel and the court's ADR director or deputy director, unless parties previously stipulate to a procedure or cannot agree and postpone further discussion of ADR options until the initial case management conference with the assigned judge.
Number of cases.
For a summary of the number of cases that have selected arbitration, early neutral evaluation, and mediation, see the following descriptions. Between January and September 1994, seventy-six cases were referred to an early settlement conference with a magistrate judge and seventeen cases were referred to a private ADR provider.
Case selection
Eligibility of cases.
Eligible cases include most civil cases that are assigned to the four participating judges and are subject to the court's case management procedures (see Local Rule 16). Cases presumptively excluded from the Multi-Option Program are those set out in Local Rule 16 and include bankruptcy appeals, actions for review of federal agency decisions, prisoner civil rights cases, habeas corpus petitions, pro se cases, reinstated or reopened cases, forfeiture actions, and tax suits.
Referral method.
All cases eligible for the Multi-Option Program are presumptively required to participate in one nonbinding ADR process. Cases are designated at filing by an order issued by the clerk to the filing party and served by the filing party on the defendant. Counsel in the designated cases must stipulate to a specific ADR procedure or participate in a joint telephone conference call with the ADR director or deputy director to discuss the suitability of the ADR options for their case. The designation order specifies the date and time of the conference call, which is held between 95 and 105 days after the complaint is filed. Counsel primarily responsible for the case must participate, and clients and their insurance carriers are strongly encouraged to participate.
If parties agree on an ADR process before the conference call, the call is not held, and the parties file a stipulation and order selecting an ADR process. Parties who agree to an ADR process after the conference call may file the form stipulation or include their ADR stipulation in their case management statement.
If the parties do not agree on an ADR process before the case management conference required by Local Rule 16, the judge discusses the ADR options at that conference. If by the end of the conference the parties cannot agree on a process, the judge selects one, unless persuaded that no ADR process will be beneficial or cost-effective. If an ADR process is selected, the judge issues a referral order.
To assist parties in selecting an ADR process, the court provides to the filing party the brochure, Dispute Resolution Procedures in the Northern District of California.
Opt-out or removal.
To seek exemption from the telephone conference call, counsel may file a motion with the assigned judge. Although there is a presumption of ADR use in cases assigned to the Multi-Option Program, counsel may seek by motion or at the case management conference to persuade the judge that it would be inappropriate.
Scheduling
Selection of an ADR process.
Parties may agree on an ADR process at any time before the case management conference. If they do not agree before the case management conference, the decision is made at the conference. The judge may also defer the ADR decision to a later point in the case.
Written submissions.
See the following descriptions for arbitration, mediation, and early neutral evaluation.
ADR session
. See the following descriptions for arbitration, mediation, and early neutral evaluation.
Number and length of sessions.
See the following descriptions for arbitration, mediation, and early neutral evaluation.
Program features
Discovery and motions.
Cases referred to ADR under the Multi-Option Program remain subject to the court's local rules and general orders, including the court's case management requirements (Local Rule 16), as well as each judge's standing orders.
Party roles and sanctions.
See the following descriptions for arbitration, mediation, and early neutral evaluation.
Outcome
. See the following descriptions for arbitration, mediation, and early neutral evaluation.
Confidentiality.
See the following descriptions for arbitration, mediation, and early neutral evaluation.
Neutrals
See the following descriptions for arbitration, mediation, and early neutral evaluation.
Program administration
Administrative matters related to the Multi-Option Program are managed by the director, deputy director, and administrative assistant of the court's Office of ADR Programs. Administration includes scheduling and conducting the telephone conference calls with counsel, sending memoranda reports on these calls to the assigned judges, assigning neutrals to cases referred to an ADR process, and selecting and training neutrals for the court's roster. A magistrate judge serves as liaison judge for the court's ADR programs.
Arbitration in California Northern
Overview
Description and authorization.
The Northern District of California is one of ten courts authorized by 28 U.S.C. §§ 651-658 to establish a mandatory, nonbinding court-annexed arbitration program. The court's procedures are spelled out in ADR Local Rule 4, which was first adopted in 1978 as Local Rule 500. Before the court adopted its Multi-Option Program on July 1, 1993, all cases meeting the eligibility criteria were automatically referred to arbitration. Under the Multi-Option Program, the civil cases of four judges are now subject to procedures established by the program and are exempt from Rule 4's automatic referral at filing. Of cases not in the Multi-Option Program, specified case types seeking only money damages of $150,000 or less are automatically assigned to arbitration at filing. Parties in cases with higher damages or nonmonetary damages may jointly request referral to arbitration. The parties determine whether the arbitration hearing will be conducted by one or three arbitrators, chosen from a list of ten arbitrators randomly selected by the court from its roster of attorneys trained by the court. The court pays the arbitrators $250 per day if serving singly and $150 per day if serving on a panel of three.
Number of cases.
Between January and September 1994, 246 cases were referred to arbitration under Rule 4. An additional 6 cases were referred to arbitration under the Multi-Option Program.
Case selection
Eligibility of cases.
All civil cases not assigned to the Multi-Option judges that fall within the following categories are automatically assigned to arbitration: (1) actions in which the United States is not a party that seek relief limited to money damages not exceeding $150,000 (exclusive of any punitive or exemplary award and interest and costs), and that are founded on diversity of citizenship or admiralty or maritime jurisdiction and arise under a contract or out of personal injury or property damage; (2) actions in which the United States is a party that seek relief limited to money damages not exceeding $150,000, and that arise under the Federal Tort Claims Act or the Longshoremen's and Harbor Workers Act or under the Suits in Admiralty Act and involve no general average; or (3) actions that arise under the Miller Act, in which the United States has no monetary interest, and that seek relief limited to money damages not exceeding $150,000 (exclusive of any punitive or exemplary award and interest and costs). Parties in other cases, regardless of the amount in controversy, may jointly request submission to arbitration. If approved by the assigned judge, the case proceeds under the procedures outlined in ADR Rule 4. Parties who believe the amount in controversy exceeds $150,000 must file certification to this effect within thirty days of the initial docketing of the case. Failure to do so waives the right to object to submission of the case to arbitration on the grounds that the case exceeds the monetary ceiling. Case types not falling in the categories above are exempt from arbitration, unless the parties agree to submit the case to arbitration.
Referral method.
Every action subject to ADR Rule 4 is referred to arbitration by the clerk once the complaint or notice of removal is filed. The court's Order Re Court Procedures notifies the filing party of the referral; this party then serves the order on other parties. A case not referred at filing but that otherwise meets the referral criteria may be referred by order of the assigned judge following stipulation by all parties, motion by a party, or on the judge's initiative. Cases not meeting the referral criteria may be referred only if all parties consent.
Opt-out or removal.
Within twenty days of the filing of the last responsive pleading, any party may move for removal from arbitration by demonstrating that the case involves novel or complex legal issues or significant and complex factual issues, that legal issues predominate over factual issues, or other grounds for finding good cause.
Scheduling
Referral
. Eligible cases are referred to arbitration when the complaint or notice of removal is filed.
Discovery and motions.
Every action subject to ADR Rule 4 is assigned to a judge upon filing, and the judge has authority to conduct status and settlement conferences, hear motions, and in all other respects supervise the case in accordance with the court's rules notwithstanding the referral to arbitration. Parties may serve discovery requests within thirty days of serving the complaint, notwithstanding Local Rule 16's temporary stay of discovery. Discovery must be completed twenty days before the arbitration hearing.
Written submissions.
No later than ten calendar days before the arbitration session, parties must give the arbitrator and other parties a written arbitration statement that summarizes the claims and defenses, identifies contested issues and proposed witnesses, and identifies the person with decision-making authority who will attend.
Optional telephone conference.
The arbitrator may conduct a brief joint telephone conference with counsel before the hearing to discuss matters such as hearing procedures, supplemental written materials, witnesses, and presentation of testimony.
Arbitration hearing.
Case systems administrators in the clerk's office set the hearing date. The hearing must take place within 20 to 120 days after the arbitrators are selected. No arbitration hearing may begin until 30 days after disposition by the court of any motion to dismiss the complaint, motion for judgment on the pleadings, motion to join necessary parties, or motion for summary judgment, provided such motion was filed and served within 30 days of the filing of the last responsive pleading. Arbitration hearings may be held anywhere within the district designated by the arbitrator, including the courthouse.
Length of hearing.
Although the length of arbitration hearings depends on the case, they generally take no more than one day.
Program features
Party roles and sanctions.
Each party and its lead trial counsel must attend the hearing. A corporate or government party may be represented by someone knowledgeable about the facts of the case. A party may be excused from personal attendance by showing extraordinary hardship in a letter submitted at least fifteen days before the hearing to the ADR magistrate judge, but the excused party must participate by telephone. Violation of the attendance requirement or any other requirement of ADR Rule 4 must be reported to the ADR magistrate judge, who will determine whether sanctions should be imposed.
Nature of the hearing.
All testimony is given under oath, and each party may cross-examine witnesses. The arbitrator is guided by the Federal Rules of Evidence but is not precluded from receiving privileged evidence or evidence he or she considers relevant.
Filing of award.
The arbitrator must file the award with the clerk's office within ten days of the hearing. The award is filed under seal and is forwarded to the assigned judge. The clerk serves copies on the parties. Unless a party files a request for trial de novo, the clerk enters judgment on the arbitration award.
De novo request.
A request for trial de novo must be filed within thirty days of filing the arbitration award. No fees are assessed against parties who request trial de novo but do not improve their position by trial.
Confidentiality.
The arbitration award may not be made known to any judge who might preside at trial or rule on dispositive motions until the court has entered final judgment or the action has otherwise been terminated. The award may also be made known to those who prepare the report required by § 903(b) of the Judicial Improvements and Access to Justice Act. No transcript, record, or award is admissible as evidence in a trial de novo or any subsequent proceeding unless the evidence is otherwise admissible or the parties stipulate, and the parties may not reveal at trial any evidence of or concerning the arbitration. There may be no ex parte communication between an arbitrator and any counsel or party on any matter touching on the action except for purposes of scheduling the hearing.
Neutrals
Qualifications and training.
The clerk maintains a roster of arbitrators who hear actions referred under ADR Rule 4. To be eligible for selection for the roster an attorney (1) must have been admitted to practice for at least ten years, (2) must be a member of the bar of the court, and (3) must, for at least five years, have committed 50% of his or her professional time to litigation or have had substantial experience as a neutral in dispute resolution proceedings. Each person selected for the roster must successfully complete the training conducted by the court, which gives the history and purpose of the arbitration program and requires participation in role-play scenarios that focus mainly on difficult procedural and ethical issues that may arise in arbitration.
Selection for case.
Promptly after the last responsive pleading is filed, the clerk's office provides the parties a list of ten arbitrators randomly drawn from the court's roster. The parties then confer to determine whether to select a single arbitrator or to request, in writing, that they be permitted to select three. Through a process of strikes (described in ADR Rule 4), the parties select the arbitrator(s) and then submit the name(s) to the clerk within ten days of receipt of the original list. If they do not, the clerk randomly selects the arbitrator(s) from the list.
Disqualification.
No person may serve as an arbitrator in an action in which any of the circumstances specified in 28 U.S.C. § 455 exist or in good faith are believed to exist. A party who believes the neutral has a conflict of interest must object in writing within ten days of learning of the possible conflict or objection is waived.
Immunity.
ADR Rule 2 specifies that arbitrators perform quasi-judicial functions and are entitled to the immunities and protections accorded to such persons by law.
Fees
. The court pays arbitrators $250 per day or portion of a day for serving as a single arbitrator or $150 per day or portion of a day for serving on a panel of three.
Program administration
Administrative matters related to arbitration are managed by the director, deputy director, and administrative assistant of the court's Office of ADR Programs. Their duties include recruiting and training arbitrators, assisting arbitrators with ethical or procedural issues, and debriefing arbitrators after their sessions. Day-to-day management, including sending notices to parties, generating the lists of arbitrators from which parties may choose, coordinating dates, docketing all arbitration events, and tracking the progress of the arbitration cases, is handled by the case systems administrators in the clerk's office.
Mediation in California Northern
Overview
Description and authorization.
Under ADR Rule 6, the Northern District of California provides a mediation program as one component of the court's Multi-Option Program. The mediation program became effective July 1, 1993. The four judges participating in the Multi-Option Program offer mediation as one of several ADR options. Except for certain case types specified in Local Rule 16, all civil cases assigned to these judges and subject to the court's case management procedures are eligible for mediation. If appropriate resources are available, mediation is provided to litigants in other cases who agree to the procedure.
In the mediation process, a neutral attorney-mediator, trained in communication and negotiation techniques and knowledgeable about federal litigation, helps counsel and their clients improve communication, clarify their understanding of their own and opponent's case, probe weaknesses in each party's legal position, identify areas of agreement, and explore settlement alternatives. The mediator may hold private caucuses with the parties but generally does not give an evaluation of the case. The first four hours of mediation are free. Parties and the mediator must then decide whether the mediator will continue to volunteer his or her time or whether the parties will jointly pay an hourly fee of $150 to continue the procedure. The parties and mediator may agree on appropriate follow-up to the mediation session, such as exchange of information or additional sessions.
Number of cases.
The mediation program is experimental and limited to four judges. Between January and September 1994, sixty-seven cases were referred to mediation under the Multi-Option Program, and another sixteen cases agreed to the procedure.
Case selection
Eligibility of cases.
Most civil cases assigned to the four Multi-Option Program judges and subject to Local Rule 16 are eligible for referral to mediation. If appropriate resources are available, mediation is available to litigants in other cases. Cases presumptively excluded from the mediation process include transferred cases, cases filed by pro se plaintiffs, cases remanded from appellate court, reinstated and reopened cases, and cases in the following categories: prisoner petitions, forfeiture/penalty, bankruptcy, Social Security, and other statutes enumerated in Local Rule 16. The four Multi-Option Program judges as well as other judges may select for referral cases other than those formally designated as eligible.
Referral method.
All cases assigned to the Multi-Option Program are presumptively required to participate in one nonbinding ADR process. Cases are designated at filing by an order issued by the clerk to the filing party and served by the filing party on the defendant. Counsel in the designated cases must stipulate to a specific ADR procedure or participate in a joint telephone conference call with the ADR director or deputy director to discuss the suitability of the ADR options for their case. The designation order specifies the date and time of the conference call, which is held between 95 and 105 days after the complaint is filed. Counsel primarily responsible for the case must participate, and clients and their insurance carriers are strongly encouraged to do so.
If parties stipulate to an ADR process before the conference call, the call is not held, and the parties file a stipulation and order selecting an ADR process. Parties who stipulate after the conference call may do so in their case management statement.
If the litigants do not agree to an ADR process before the case management conference required by Local Rule 16, the judge discusses the ADR options at that conference. If by the end of the conference the parties cannot agree on a process, the judge selects one, unless persuaded that no ADR process will be beneficial or cost-effective. If an ADR process is selected, the judge issues an order referring the case.
Cases not assigned to the Multi-Option Program may be referred to mediation by order of the assigned judge following stipulation by all parties, motion by a party, or on the judge's initiative.
To assist parties in selecting an ADR process, the court provides a brochure, Dispute Resolution Procedures in the Northern District of California, which the clerk gives to the filing party along with the notice designating the case as a Multi-Option case.
Opt-out or removal.
To seek exemption from the conference call or from a referral to ADR, counsel may file a motion with the assigned judge.
Scheduling
Referral.
Parties may stipulate to mediation at any time before the case management conference. If they do not stipulate before the conference, the decision is made at the conference.
Written submissions.
At least ten days before the first mediation session, each party must submit to the mediator and serve on all parties a written mediation statement of ten pages or less. The statement, which is not filed or transmitted to the assigned judge, must (1) identify those with decision-making authority who will attend the sessions, (2) describe the suit, setting forth the party's views on the key liability issues and damages, (3) identify others whose presence might substantially improve the prospects for settlement, (4) indicate the status of settlement negotiations and other information that might be helpful to the mediator, (5) identify discovery or motions that would contribute to meaningful settlement negotiations, and (6) include copies of documents that might advance the settlement process.
Mediation session.
Promptly after appointment to a case, the mediator sets the date and place of the mediation session, within time frames set by the ADR order. The mediator also schedules a telephone conference with counsel to discuss such matters as scheduling, procedures to be followed, and client attendance. Unless otherwise ordered, mediation sessions must be conducted within ninety days of the first case management conference or issuance of the case management order, whichever comes first. Requests to extend the deadline must be submitted by motion to the assigned judge at least fifteen days before the session is to be held.
Number and length of sessions.
This information is not yet available.
Program features
Discovery and motions.
Cases referred to mediation remain subject to the court's local rules and general orders, including the requirements of Local Rule 16 and each judge's standing orders.
Party roles and sanctions.
Parties and their counsel must attend all mediation conferences. A party other than a natural person (e.g., a corporation or insurance company) satisfies this requirement if represented by a person other than outside counsel who has full settlement authority and knowledge about the facts of the case. Governmental entities must send a representative knowledgeable about the facts of the case and the government's position. At least fifteen days before the mediation session, a party may ask by letter to the ADR magistrate judge to be excused from attendance because of extraordinary hardship. An excused party must be available by telephone. Mediators must report any violation of the mediation order to the ADR magistrate judge, including failure to comply with the attendance requirements. The magistrate judge will determine whether sanctions should be imposed.
Outcome.
Within ten days of the mediation session, on a form provided by the court, the mediator must report to the ADR director whether the mediation resulted in full or partial settlement, whether any follow-up is scheduled, and any stipulations the parties agreed to disclose.
Confidentiality.
The court, the mediator, all counsel, and all parties must treat as confidential all written and oral communications made in connection with or during any mediation session. All communications are protected by Fed. R. Evid. 408 and Fed. R. Civ. P. 68. Absent stipulation by the parties and mediator, no written or oral communication made by any party, attorney, or other participant may be disclosed to anyone not involved in the litigation or used for any purpose in pending or future proceedings in this court. None of the substance of the mediation may be communicated by anyone to the assigned judge. The mediator may ask the parties and all those attending the session to sign a confidentiality agreement.
Neutrals
Qualifications and training.
Mediators must be admitted to the practice of law for at least seven years and be a member of the California bar or of the faculty of an accredited law school. Additionally, mediators on the court roster must have strong mediation process skills and training to listen well and facilitate communication.
Selection for case.
After entry of an order referring the case to mediation, the ADR office appoints a mediator from the court's roster and notifies the parties of the appointment.
The court conducts a two-day mediation training program for applicants to its roster. The training includes participation in role-play scenarios, observation of segments of a mediation session, and discussion of ethical and administrative requirements. Training must be successfully completed before appointment to the roster.
Disqualification.
No mediator may serve in violation of the standards set forth in 28 U.S.C. § 455. If a circumstance covered by § 455 might exist, the mediator must promptly notify the parties. A party who believes that the assigned mediator has a conflict of interest must bring it to the attention of the ADR director, in writing, within ten calendar days of learning the source of the potential conflict or is deemed to have waived objection.
Immunity.
ADR Rule 2 specifies that mediators perform quasi-judicial functions and are entitled to the immunities and protections accorded to such persons by law.
Fees.
Mediators volunteer their preparation time and the first four hours of the mediation session. If the mediation session exceeds four hours, the mediator may either continue to volunteer his or her time or give the parties the option of concluding the procedure or paying the mediator for additional time at an hourly rate of $150. The mediation session continues only if all parties and the mediator agree.
Program administration
Administrative matters related to mediation are managed by the director, deputy director, and administrative assistant of the court's Office of ADR Programs. Their duties include recruiting and training mediators, assigning mediators to cases, assisting mediators with ethical or procedural issues, debriefing mediators after their sessions, and reviewing requests to excuse clients from requirements to attend in person. The court's case systems administrators docket all ADR events and assist with tracking cases and following up with neutrals.
Early Neutral Evaluation in California Northern
Overview
Description and authorization.
In 1985, the Northern District of California created the concept and practice of early neutral evaluation through a small experimental project authorized by general order. The program was expanded in 1988 to include a larger portion of the caseload. Eligible cases include tort and contract cases, employment civil rights cases, property rights cases (e.g., patent and trademark), antitrust and RICO cases, cases involving securities or commodities, and other cases designated by the assigned judge or not eligible for the court's arbitration program or assigned to the Multi-Option Program. Before the court's adoption on July 1, 1993, of its Multi-Option Program, all even-numbered eligible cases were automatically referred to early neutral evaluation. Under the Multi-Option Program, however, civil cases of the four participating judges are now exempt from automatic referral to ENE but may select it as their preferred ADR option. Eligible cases on other judges' dockets remain subject to automatic referral to ENE.
In the ENE program in this district, which is now authorized by ADR Rule 5, an attorney with experience in the subject matter of the case meets with counsel and parties for both sides at an early stage in the litigation. After each side presents its position, the evaluator assists the parties in clarifying issues and assessing the strengths and weaknesses of the case. The evaluator may provide a nonbinding case assessment and, if asked by the parties, will help develop a discovery plan or will assist with settlement negotiations. The evaluator may also schedule follow-up sessions. The rules of evidence do not apply, and there is no formal examination of witnesses. Evaluators are not paid for their preparation time and the first four hours of ENE session time. If additional time is needed, the evaluator may continue to volunteer his or her time or give the parties the option of concluding the session or paying the evaluator for additional time at the hourly rate of $150.
Number of cases.
Between January and September 1994, 138 cases were referred to ENE under ADR Rule 5. An additional 74 cases were referred to ENE under the Multi-Option Program.
Case selection
Eligibility of cases.
Cases that may be automatically ordered to ENE include contract and tort cases, employment civil rights cases, property rights cases (e.g., patent and trademark), antitrust and RICO cases, and cases involving securities or commodities. Judges may designate cases in other subject matter categories if qualified evaluators are available. Cases eligible for the arbitration program are not automatically referred to ENE but may be referred on stipulation of the parties.
In addition to the cases assigned to the Multi-Option Program judges and to arbitration, cases not automatically referred to ENE include class actions, cases in which the principal relief sought is injunctive, and cases in which one or more parties is pro se. Cases in which a declaratory judgment only is sought may not be automatically referred when the only parties to the action are insurance carriers, sureties, or bonding companies.
Referral method.
Upon filing or notice of removal, and subject to the availability of qualified evaluators, the court designates for ENE every even-numbered case that meets the eligibility criteria of ADR Rule 5 and is not subject to the Multi-Option Program. On motion of a party or sua sponte, a judge may refer other cases to ENE as well. When a case is designated for ENE at filing, the clerk's office sends an Order Re Court Procedures to the plaintiff's counsel, who provides the defendant with a copy of the notice within ten days of receiving it or when the defendant is served.
Opt-out or removal.
A party who believes an extraordinary circumstance makes participation in ENE unfair may petition the assigned judge for relief within ten days of receiving notice that the case has been designated for ENE.
Scheduling
Referral.
For cases meeting the eligibility criteria for ENE, automatic referral occurs at filing. For other cases, referral may occur later if the court so orders, if all parties agree, or if one party requests ENE.
Written submissions.
No later than ten days before the evaluation session, each party must submit directly to the evaluator and serve on all other parties a written evaluation statement. The statement must (1) identify the people with decision-making authority, including counsel, who will attend the session, (2) describe the substance of the suit, (3) address whether there are legal or factual issues whose early disposition might reduce the scope of the dispute or contribute to settlement, (4) identify the discovery that promises to contribute most to meaningful settlement negotiations, and (5) describe the history and status of settlement negotiations. Parties must attach to these statements copies of documents out of which the suit arose (e.g., contracts and medical reports). ADR Rule 5 sets out additional requirements for statements submitted in patent, copyright, and trademark cases. Parties' statements are not filed, and the assigned judge does not have access to them.
ENE session.
In cases automatically referred to ENE when filed, the ENE session is held within 150 days of the filing of the complaint or notice of removal, or within 45 days of the clerk's issuance of a notice appointing an evaluator. In cases referred through the Multi-Option Program, the ENE session is held within 90 days of the initial case management conference or issuance of the case management order, whichever comes first. In cases not in the Multi-Option Program that are referred to ENE sometime after filing, the court fixes the time frame for the ENE session. Requests to extend deadlines must be by motion to the assigned judge at least 15 days before the session is held. Within the time frames set by the court, the evaluator sets the date and place for the evaluation session. Sessions are held in a neutral location, such as the evaluator's office or the courthouse. The evaluator also holds a telephone conference with counsel to discuss scheduling, procedures to be followed, and attendance of parties.
Number and length of sessions.
The number and length of sessions varies by case. A study of the ENE program showed that 30% of the sessions last no more than two hours. Another 40% last from two to four hours, 20% from four to six hours, and 10% more than six hours. In 20% of the cases, more than one session was held. (See Evaluation.)
Program features
Discovery and motions.
The court and evaluators may not schedule ENE events to interfere with the management of the case by the assigned judge. Agreements made in the ENE session may not impose duties or fix schedules inconsistent with orders issued by the judge. A party may not seek to avoid or postpone any obligation imposed by the judge on any ground related to the ENE program. To seek relief from any deadlines, a party must file a motion with the assigned judge.
Party roles and sanctions.
The parties and the attorney primarily responsible for the case must attend the ENE session. If the party is a corporation or insurance company, it must be represented by a person other than outside counsel who has authority to settle and is knowledgeable about the facts of the case. A party that is a unit of government must send someone knowledgeable about the case and the government's position and who has, to the greatest extent possible, authority to settle. Attendance is excused only by writing to the ADR magistrate judge at least fifteen days before the ENE session and only on a showing of an extraordinary or unjust hardship. Parties excused from attending must participate by telephone. Evaluators must promptly report any violations of ADR Rule 5 to the ADR magistrate judge, who may impose sanctions as necessary.
Outcome
. Within ten days of the close of each ENE session, the evaluator must report to the ADR office whether any follow-up is scheduled, whether the case settled in whole or in part, and any stipulations the parties agree may be disclosed.
Confidentiality.
The parties' written evaluation reports are not filed with the court, and the assigned judge does not have access to them. All written or oral communications made in the ENE process are confidential and are protected by Fed. R. Evid. 408 and Fed. R. Civ. P. 68. Communications made in the ENE process may not be disclosed to anyone not involved in the litigation and may not be used, including for impeachment purposes, in any pending or future litigation in this court. There may be no communication about the case or the ENE process between the evaluators and the judges on the court. The evaluator may ask the parties and all those attending the ENE session to sign a confidentiality agreement.
Neutrals
Qualifications and training.
To be selected for the court's ENE roster, an applicant must be a member of a state bar for at least fifteen years and a member of the bar of the court or a faculty member at an accredited law school. Applicants must also have subject matter expertise in one or more categories of cases eligible for the ENE program and have the temperament to listen well, facilitate communication, and, if called on, assist in settlement negotiations.
All evaluators are required to successfully complete the court's ENE training session. The program describes the history and components of the ENE model. Panels of experienced evaluators then discuss their roles in the ENE session, including preparation and opening statements; the parties' case presentations and the evaluator's assessment of the case; settlement discussions; and case planning and follow-up.
Selection for case.
The ADR office selects the evaluator from the court's roster of trained ENE neutrals. After determining that no conflict of interest exists, the director notifies the evaluator and counsel of the assignment. Evaluators are assigned on the basis of subject matter expertise so they can effectively assess the positions of the parties and give a meaningful evaluation of the case.
Disqualification.
No evaluator may serve in any matter in violation of the standards set forth in 28 U.S.C. § 455. If the evaluator believes that a circumstance covered by section 455(a) exists, the evaluator must disclose this circumstance to all counsel in writing. If a party who believes there is a conflict of interest does not notify the ADR office in writing within ten days of learning the source of the potential conflict, he or she waives the objection.
Immunity.
ADR Rule 2 specifies that ENE neutrals perform quasi-judicial functions and are entitled to the immunities and protections accorded such by law.
Fees.
Evaluators are not paid for their preparation time or for the first four hours of ENE session time. If the ADR session exceeds four hours, the evaluator may either continue to volunteer his or her time or give the parties the option of concluding the procedure or paying the evaluator for additional time at an hourly rate of $150. The ENE session continues only if all parties and the evaluator agree.
Program administration
Administrative matters related to ENE are managed by the director, deputy director, and administrative assistant of the court's Office of ADR Programs. Their duties include recruiting and training evaluators, assigning evaluators to cases, assisting evaluators with ethical or procedural issues, debriefing evaluators after their sessions, and reviewing requests to excuse parties from attending in person. The case systems administrators in the clerk's office assist by tracking the ENE cases, following up with neutrals, and docketing all ENE events.
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