District of Colorado
IN BRIEF
Process summary
ADR generally.
In the District of Colorado, Local Rule 53.2 authorizes judges to refer litigants, pursuant to a motion by the judge or stipulation or motion by the parties, to a settlement conference (see below) or other form of ADR. On occasion judges have appointed special masters for settlement purposes, conducted summary jury trials, or referred cases to arbitration proceedings outside the court. In the main, however, the court believes fair settlements are best promoted by active judicial case management rather than through court-based ADR. Alternatives to the judicial process, the court believes, should be pursued by litigants through entities other than the court. The court rejected the recommendation of its CJRA advisory group to establish a court-based ADR program.
Magistrate judge settlement conferences.
Under Local Rule 53.2, almost all civil cases are referred to magistrate judges for mandatory settlement conferences. On occasion the judge assigned the case may refer it to another district judge, rather than a magistrate judge, for settlement. A case may be removed from the settlement process if a party shows good cause or the judge orders removal. Cases excluded from referral to settlement conferences include bankruptcy and administrative appeals; habeas corpus proceedings; pro se prisoner cases; forfeiture proceedings; government collection actions; IRS, SEC, EPA, HHS, and other government agency administrative proceedings; actions to enforce or register judgments; and proceedings to enforce or contest summons, subpoenas, and deposition proceedings in civil actions pending in other districts.
The district judge assigned the case makes the settlement conference referral and may do so at any time during the litigation. Some district judges include the settlement conference referral in a general order of reference to a magistrate judge shortly after the case is filed. During the referral, the district judge may stay the action in whole or in part to facilitate settlement.
Before the settlement conference, counsel for each party may be required to submit to the settlement judge a confidential statement, including an estimate of the attorney's fees and other expenses the client is likely to incur if the case goes to trial. Counsel must also provide the statement to their clients.
Generally, the settlement judges use neutral evaluation and mediation techniques, depending on the case and counsel. Very often more than one session is held in a case. The settlement judge does not discuss the case with the referring district judge. All the court's magistrate judges receive mediation training.
Of note
Obligations of counsel.
Attorneys are required to discuss ADR options with their clients and with each other and must demonstrate in their case management statement that they have done so. Some judges also require that counsel discuss in their case management statement the suitability of ADR for their case.
For more information
James R. Manspeaker, Clerk of Court, 303-844-3433
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