District of Delaware
IN BRIEF
Process summary
Magistrate judge settlement program.
Under the district's CJRA plan, effective December 23, 1991, the court established a settlement program in which the district's magistrate judges conduct settlement conferences, mediations, early neutral evaluations, and arbitrations. The assigned district judge may refer cases on stipulation of the parties or sua sponte without party consent. All civil cases, except prisoner and habeas corpus petitions, are eligible for referral. To date, the program has been used for cases involving contracts, employment discrimination and other civil rights matters, trademark, copyright, patent claims, securities, and environmental matters.
At the initial Rule 16 conference, the assigned district judge discusses settlement options with the parties. If appropriate, the case is referred by the judge's scheduling order to the magistrate judge settlement program. Typically, all other case activities go forward simultaneously, unless a stay of litigation is stipulated to by the parties or ordered by the court.
To select an appropriate process and to discuss timing of the settlement event, the assigned magistrate judge holds a telephone conference with counsel shortly after the order of referral is issued. At least ten days before the settlement event, each party is generally required to submit to the magistrate judge a confidential memorandum or letter limited to fifteen pages describing the party's positions, the case's strengths and weaknesses, and prior settlement efforts, and suggesting how the court can best assist the parties in resolving the case. Critical documents may also be attached. The precise subjects to be addressed in the settlement statement are set forth in the settlement order.
In addition to trial counsel, the parties or client representatives with settlement authority must attend the settlement session. Failure to comply with the attendance requirement may result in an order to show cause. If the settlement session is a mediation or settlement conference, the session is generally scheduled to last all day or approximately eight hours. If the initial session does not result in settlement, the advisability of follow-up sessions or the use of other forms of ADR are discussed with the litigants and scheduled as appropriate. All settlement proceedings are confidential and may not be recorded without prior consent of all parties and the magistrate judge. Settlement information may not be introduced in other proceedings.
Of note
Obligations of counsel.
Attorneys are required to discuss ADR and settlement options with each other and their clients and to demonstrate that they have done so. They must also be prepared to address the case's suitability for ADR and settlement with the assigned district judge.
Plans.
Mediation and arbitration are being reviewed by the local rules committee.
Evaluation.
As one of the ten pilot districts established by the CJRA, the District of Delaware is included in the RAND study of the pilot and comparison districts, which will be reported to Congress by the Judicial Conference in 1996.
For more information
Mary Pat Trostle, U.S. Magistrate Judge, 302-573-6173
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