[ADR] District of Columbia

District of Columbia

IN BRIEF

Process summary

Mediation. In 1989, the District of Columbia created a voluntary mediation program, which is governed by the court's Program Procedures for Mediation. See below.

Early neutral evaluation (ENE). In 1989 the court established an early neutral evaluation program but eliminated it in 1995 because the court's mediation program has proven to be appropriate for most cases referred to ADR. Neutrals with subject-matter expertise continue to be available for ADR assignments in cases in which the judge and/or the parties think the evaluation of an independent expert would help.

Judicial settlement conferences. Individual judges refer cases to magistrate judges for settlement conferences.

Of note

ADR obligations of counsel. Under the district's CJRA plan, counsel face new mandatory obligations to discuss ADR with opposing counsel and to consider whether their case would benefit from ADR. Counsel must also address this issue in their proposed case management statement.

Information from court. The court distributes a brochure to all counsel describing the district's mediation program.

Evaluation. An evaluation of the district's mediation programs has been completed by an outside consultant. The April 1995 unpublished report is entitled Assessment of the Mediation Program of the U.S. District Court for the District of Columbia.

For more information

Nancy E. Stanley, Director of Dispute Resolution, 202-273-0657; Michael A. Terry, Deputy Director of Dispute Resolution, 202-273-0657

IN DEPTH

Mediation in the District of Columbia

Overview

Description and authorization. The District Court for the District of Columbia created its voluntary mediation program in 1989. The process is governed by the court's Program Procedures for Mediation. All civil cases are eligible, but the majority of those referred are contract, personal injury, or employment discrimination cases, as well as a significant number of cases involving government litigants. Cases are designated for mediation in one of two ways: the judge may recommend that a case enter the program and encourage the parties to consent to the process, or parties themselves may ask the judge to refer the case to mediation. Referrals may be made at any time in the litigation. After a case enters the program, the court appoints a trained mediator who arranges an initial joint session, usually within three weeks of appointment. The mediation may involve one or two sessions or may require a series of meetings over a period of time. The process is nonbinding and is provided pro bono.

Number of cases. Between January and September 1994, approximately 140 cases were referred to mediation.

Case selection

Eligibility of cases. All civil cases are eligible for referral to mediation, although the majority of referrals involve contract, personal injury, or employment discrimination actions. A significant number of cases involving government litigants are also handled by the program. No civil case type is presumed ineligible, but pro se litigants are discouraged from using the process.

Referral method. Referral to mediation requires the consent of all parties and the approval of the assigned judge. The judge may recommend that a case enter the program and encourage the parties to consent to the process, or the parties themselves may ask the judge to refer their case to mediation. The court's ADR staff also assist parties and judges in assessing individual cases for mediation. If the parties consent to referral, the judge enters a referral order.

Opt-out or removal. Since the referral is made only with party consent, no removal or opt-out procedures are necessary.

Scheduling

Referral. Referral to mediation may be made at any time during the litigation.

Written submissions. At least seven days before the first mediation session, each litigant must submit a position paper of ten pages or less to the mediator and each party, outlining key facts and legal issues and describing pending motions. These position papers are not filed with the court.

Mediation session. In the referral order, the referring judge generally establishes a time limit for the duration of the mediation process. The court's ADR staff and mediator monitor the process. The mediator schedules the mediation sessions, which are usually held at the courthouse or mediator's office within three weeks of the mediator's appointment.

Number and length of sessions. The initial session usually lasts several hours. In a complex case, there may be as many as five or six sessions, with additional follow-up telephone calls.

Program features

Discovery and motions. The general policy of the court is to require other activities to go forward during ADR, but judges occasionally suspend litigation activities sua sponte or at the request of the parties.

Party roles and sanctions. All parties and their counsel are required to attend the joint mediation sessions. When an institution is a party, the court requires a representative of the institution with settlement authority either to attend or to be readily accessible by telephone. When the party is a government entity, senior government attorneys may attend the session, but efforts must be made to ensure telephone access to an official with settlement authority. Party noncompliance with program procedures may be reported to the ADR staff, who, if necessary, consult the court's compliance judge, a specially designated judge with authority to impose sanctions on uncooperative parties.

Outcome. A copy of the referral order with the notation "settled" or "not settled" is sent to the referring judge after the mediation is concluded.

Confidentiality. The Program Procedures for Mediation protect the confidentiality of the mediation process, bind the mediator to guarantee the confidentiality of all information, and shield the assigned judge from all information about the mediation. Contact between the mediator and the assigned judge is prohibited.

Neutrals

Qualifications and training. Each member of the court's roster of mediators is individually invited by the court to be on the roster. In issuing these invitations, the court seeks attorneys who have been in practice for at least ten years, are members of the district's bar, are well respected among the bar, and possess creative problem-solving skills. The mediators must complete a sixteen hour training program offered by the court and are encouraged to attend periodic in-service training sessions.

Selection for case. The court's ADR staff appoints a mediator from the court's roster of trained attorney-mediators. The selection process considers the needs of the case and the litigants. Where subject matter expertise is important, a mediator with the requisite knowledge is appointed.

Disqualification. The court has no written disqualification rules, but its unwritten policy requires the mediators to recuse themselves from cases in which they believe they would have a conflict of interest. The ADR administrators ask the mediators to check for conflicts when the case is assigned and encourage the mediators to recuse themselves when they or their law firm have a current or prior professional affiliation with any party, when they have a close relationship with one or more of the attorneys, or for any other reason that might make their service as a mediator in the particular case inappropriate. A new mediator may be substituted if any party objects to the mediator initially appointed by the program administrators.

Immunity. The U.S. Court of Appeals for the D.C. Circuit recently decided Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994) (court-appointed mediator or neutral case evaluator has absolute quasi-judicial immunity when performing official duties), which grants case evaluators in the D.C. Superior Court absolute quasi-judicial immunity. Wagshal's application to the U.S. district court mediation program has not been tested.

Fees. The mediators serve without compensation.

Program administration

The mediation program is administered by the court's dispute resolution staff, located in the D.C. Circuit's Office of the Circuit Executive. Program administrators select and help train mediators, assign mediators to cases referred to mediation, monitor the mediators' work, and serve as a resource for mediators and the public when questions arise about the mediation program or about particular cases.

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