[ADR] Southern District of California

Southern District of California

IN BRIEF

Process summary

ADR generally. The Southern District of California authorizes various ADR processes for civil cases, including early neutral evaluation, mediation, nonbinding arbitration, summary jury trial, minitrial, and settlement conferences with judges. As an initial step, litigants in almost all civil cases are required to meet with the assigned magistrate judge shortly after responsive pleadings are filed to discuss their claims and defenses and to try to reach settlement. This initial session is called early neutral evaluation (ENE) in this district. At the conclusion of the ENE conference or at any other time, the assigned district or magistrate judge may refer the case with or without party consent to one of the court's other ADR processes. The court's ADR programs are authorized under the district's CJRA plan, effective January 1, 1992, Local Rules 16.1(c) and 37.1, General Order 394-B, and the court's Arbitration and Mediation Rules. The court is also experimenting with settlement procedures in criminal cases.

Early neutral evaluation (ENE). Litigants in almost all civil cases are required to meet with the assigned magistrate judge shortly after responsive pleadings are filed to discuss the case and to try to reach settlement. See below.

Mediation. If a case is not resolved through the ENE conference, it may be referred to mediation with or without party consent. See below.

Arbitration. If a case is not resolved through the ENE conference, it may be referred to arbitration with or without party consent. See below.

Summary jury trials (SJT). The summary jury trial is authorized by Local Rule 37.1.f. Referrals may be made with or without party consent after a hearing. Eligible cases include trial ready cases in which the potential judgment does not exceed $250,000 and the referring judge believes the case is suited to settlement by this process. This procedure is not used extensively.

Minitrial. The minitrial, which in this district is a nonbinding summary trial held before a magistrate judge who acts as the fact finder, is authorized by Local Rule 37.1.f. Referrals may be made with or without party consent after a hearing. This procedure is not used extensively.

Judicial settlement conferences. Under Local Rule 37.1, mandatory settlement conferences conducted by magistrate judges are held in almost all cases. Party attendance may be required. The judge conducting the settlement conference is disqualified from trying the case unless all parties agree to waive this restriction. In addition, the trial judge may order the parties, before judgment is entered, to participate in a post-verdict settlement conference with a judge other than the trial judge.

Of note

Obligations of counsel. Counsel must be prepared to discuss ADR and settlement with the assigned judge at every case conference.

Evaluation. As one of the ten pilot courts established under the CJRA, the Southern District of California is part of the RAND study of the pilot and comparison districts, which will be reported to Congress by the Judicial Conference in 1996.

For more information

Barry Ted Moskowitz, U.S. District Judge, 619-557-5583

IN DEPTH

Early Neutral Evaluation in California Southern

Overview

Description and authorization. The Southern District of California requires litigants in almost every civil case to meet with the assigned magistrate judge supervising discovery for a settlement-oriented conference, or an ENE session, within forty-five days of filing the answer. At the session, attended by counsel and parties, the magistrate judge and parties discuss the claims and defenses and attempt to settle the case. The conference is informal, off the record, privileged, and confidential. If a case does not settle at the conference, the magistrate judge is authorized to refer the case to mediation or arbitration with or without party consent. The ENE program, which is experimental, is authorized under the district's CJRA plan, effective January 1, 1992, General Order 394-B, and Local Rule 16.1.c.

Number of cases. Between January and December 1994, approximately 1,410 cases were referred to ENE.

Case selection

Eligibility of cases. Almost all civil cases are required to participate in an early neutral evaluation session. Social Security appeals and habeas corpus cases are excluded from ENE.

Referral method. All eligible cases are automatically designated for ENE. Parties and counsel receive an order from the magistrate judge hosting the conference notifying them of the time and date of the mandatory ENE conference.

Opt-out or removal. There is no procedure for removing cases from ENE.

Scheduling

Referral. Cases are designated for mandatory ENE when the answer is filed.

Written submissions. No written submissions are required.

ENE session. The ENE conference is generally held within forty-five days of filing the answer. The conference is arranged by court staff and is held at the courthouse.

Number and length of sessions. The ENE conference lasts from thirty minutes to three hours. A second conference may be scheduled if needed.

Program features

Discovery and motions. All other case activities, including discovery, proceed unless stayed by the magistrate judge for cause.

Party roles and sanctions. All counsel and parties with settlement authority must attend the conference. Sanctions may be imposed for unexcused failure to attend.

Outcome. At the conclusion of the conference, an order is entered indicating that the conference was held, noting whether the case settled, and stating whether the case has been referred to mediation or arbitration.

Confidentiality. The ENE conference is privileged and confidential.

Neutrals

Selection for case. The magistrate judge supervising discovery conducts the conference.

Immunity. Magistrate judges are protected by judicial immunity.

Disqualification. The requirements for disqualification are stated in 28 U.S.C. 壯 144 and 455.

Program administration

The process is individually administered by each magistrate judge for cases assigned to that judge.

Mediation in California Southern

Overview

Description and authorization. The Southern District of California offers mediation as one of the ADR options established by its CJRA plan. If a case does not settle at the mandatory ENE conference, the magistrate judge is authorized to refer the case to nonbinding mediation. Referral to mediation may be made without party consent, although consensual referrals are preferred. The initial mediation session is generally held within forty-five days of the referral. If no settlement is reached, the case returns to the trial calendar. The mediation program, which is experimental, is authorized by the district's CJRA plan, effective January 1, 1992, General Order 394-B, Local Rule 16.1, and the court's Arbitration and Mediation Rules.

Number of cases. Between January and December 1994, seven cases were referred to mediation.

Case selection

Eligibility of cases. Although all civil cases are eligible, mediation generally is not used in habeas corpus, Social Security, and prisoner cases.

Referral method. The judge may refer a case to mediation with or without party consent. Referral is made on a case-by-case basis after discussion with the parties and at the discretion of the judge hosting the ENE session. Mandatory referral is authorized if the judge believes mediation might result in cost-effective resolution of the lawsuit. Parties may also use the process voluntarily. Once a case is referred, a written order is entered.

Opt-out or removal. The rules do not specify a removal procedure.

Scheduling

Referral. Referral to mediation normally occurs at the conclusion of the mandatory ENE session. Referral may also be made at any other appropriate time in the litigation.

Written submissions. Ten days before the mediation session, each party must submit a statement regarding liability and damages to the mediator and other parties. These statements are not filed with the court.

Mediation session. The mediation hearing is generally held within forty-five days of the referral date. Arrangements for the mediation session are made by the mediator, and the session is held at the mediator's office.

Number and length of sessions. Mediation sessions may last up to a maximum of six hours, and more than one session may be held.

Program features

Discovery and motions. All other case activities, including discovery or motion practice, must go forward during the mediation process.

Party roles and sanctions. Unless excused by the mediator, the parties themselves are required to attend the mediation session with counsel. If the defense of an action is provided by a liability insurance company, a settlement-empowered insurer representative must also attend. Sanctions may be imposed for failure to participate or proceed in good faith.

Outcome. If no settlement results, the mediator must file a statement with the court indicating whether there has been compliance with the settlement and mediation requirements of the rule and that settlement was not reached.

Confidentiality. All proceedings of the mediation conference, including any statement made by any party, attorney, or other participant, are protected and may not be reported, recorded, placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission. No party is bound by anything done or said at the conference unless a settlement is reached, in which event the settlement agreement must be in writing and is binding on all parties.

Memoranda prepared by the parties or the mediator are not filed with the court or otherwise made available to the court or jury. No comments of the mediator are made available to the trial judge or jury, but the mediator may discuss the action with the judge who has oversight responsibility for the court's ADR and settlement programs.

Neutrals

Qualifications and training. Lawyers admitted in the district with at least five years of practice are eligible to be appointed to the court's roster of mediators and arbitrators. The court does not require or provide training for the neutrals.

Selection for case. The parties select one mediator from the court's roster of mediators and arbitrators. If the parties cannot agree, the assigned district judge or magistrate judge makes the selection. When the court makes the appointment, a mediator with subject matter expertise is selected.

Disqualification. Mediators are disqualified for bias or prejudice as provided in 28 U.S.C. � 144 and must disqualify themselves in any action in which they would be required under 28 U.S.C. � 455 to disqualify themselves if they were a justice, judge, or magistrate judge.

Immunity. The court states that mediators have immunity to the extent provided by law.

Fees. Mediators serve without compensation.

Program administration

The process is individually administered by each assigned judge for cases assigned to that judge.

Arbitration in California Southern

Overview

Description and authorization. The Southern District of California offers arbitration as one of the ADR options established by its CJRA plan. If a case does not settle at the mandatory ENE session, the assigned magistrate judge is authorized to refer the case to nonbinding arbitration. Mandatory referral is authorized when the judge believes arbitration might result in a cost-effective resolution of the lawsuit. Consensual referrals are also permitted. A single arbitrator serves without compensation. If either party rejects the arbitrator's nonbinding award, the case returns to the litigation track without penalty. The district's experimental arbitration program is authorized by the court's CJRA plan, effective January 1, 1992, General Order 394-B, and the court's Arbitration and Mediation Rules. The program is not within the ambit of 28 U.S.C. 壯 651-658.

Number of cases. Between January and September 1994, nine cases were referred to arbitration.

Case selection

Eligibility of cases. All civil cases are eligible for referral to arbitration at the discretion of the assigned judge. No cases are excluded, but as a practical matter, prisoner cases and Social Security cases are not referred to arbitration.

Referral method. Cases may be referred to arbitration with or without the consent of the parties. The standard for referral is whether the judge believes arbitration might result in cost-effective resolution of the lawsuit. Referral is discussed at the mandatory ENE conference held in each case, and an order of referral is entered.

Opt-out or removal. No removal procedure is specified in the rules.

Scheduling

Referral. Cases are generally referred to arbitration at the conclusion of the court's mandatory ENE session.

Discovery and motions. During the period of arbitration referral and hearing, discovery goes forward as usual. Dispositive motions are not ruled on by the court until the arbitration process concludes.

Written submissions. At least ten days before the arbitration hearing, each party must submit to opposing counsel and the arbitrator a prehearing statement listing the issues to be determined and all witnesses and exhibits to be presented at the arbitration hearing. An arbitration brief may also be filed.

Arbitration hearing. The arbitration hearing must be held within forty-five days of the ENE conference, absent a written order of extension from the court. The court's policy is to discourage continuances and extensions. The arbitrator sets the location, time, and date of the arbitration hearing.

Length of hearing. A hearing can last up to six hours.

Program features

Party roles and sanctions. The arbitrator may order the parties or client representatives with settlement authority to attend the arbitration hearing. Sanctions may be imposed for failure to participate in good faith in accordance with the local rules.

Filing of award. The arbitrator issues the award either orally at the end of the hearing or in writing within five days of the hearing. The arbitrator's award is communicated only to the parties and is not included in the court file.

De novo request. Unless the case settles, the action returns to the court's normal trial calendar. Litigants incur no fees or sanctions for rejecting the arbitrator's nonbinding award.

Confidentiality. At the trial of the action, no evidence of the arbitration proceeding or result is admissible. All proceedings, including any statements made by any party, are protected and may not be reported, recorded, placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission. No party is bound by anything done or said in the arbitration proceeding unless a settlement is reached.

The magistrate judge assigned to the case may obtain the results of the arbitration hearing from the parties or the arbitrator for use in settlement discussions. The arbitrator may also discuss the case with the referring magistrate judge to facilitate settlement.

Neutrals

Qualifications and training. Lawyers admitted to the district with at least five years of practice are eligible for appointment to the court's roster, which is a combined list of both arbitrators and mediators and includes brief professional histories for each. No training is provided for the court's roster of neutrals.

Selection for case. A single arbitrator may be selected by the parties from the court's roster. If the parties fail to agree on a neutral, the selection will be made by the assigned district or magistrate judge. When the court makes the appointment, an arbitrator with subject matter expertise is selected.

Disqualification. An arbitrator is subject to the disqualification rules of 28 U.S.C. � 144 and 28 U.S.C. � 455.

Immunity. The court states that arbitrators have immunity to the extent provided by law.

Fees. The arbitrators provide their services pro bono.

Program administration

All of the ADR processes are administered by the judges on a case-by-case basis. There is no central administration. All issues concerning the rules are referred to the assigned district judges for resolution.

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