Northern District of Indiana


IN BRIEF

Process summary

Mediation. Under Local Rule 53.2, the Northern District of Indiana has established a mediation program. See below.

Judicial settlement conferences. The Northern District of Indiana requires parties in almost all civil cases to participate in a settlement conference with a district or magistrate judge. Settlement is first discussed at the initial pretrial conference. When mediation has not resolved the case, a settlement conference is scheduled between the final pretrial conference and the trial date. Five days before the settlement conference, counsel must submit a settlement statement setting out (1) the legal and factual contentions of the parties as to both liability and damages; (2) the factors considered in arriving at the current settlement posture; and (3) the status of settlement negotiations to date.

Of note

Obligations of counsel. Counsel must discuss mediation with their clients and must be prepared to discuss mediation and the selection of a mediator with the assigned judge.

Evaluation. As one of the ten comparison districts under the CJRA, the Northern District of Indiana 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

William C. Lee, U.S. District Judge, 219-422-2841; Kathryn Brooks, Deputy Clerk in Charge, Fort Wayne Division, 219-424-7360


IN DEPTH

Mediation in Indiana Northern

Overview

Description and authorization. Under Local Rule 53.2, most civil cases in the Northern District of Indiana must participate in a single, mandatory mediation session conducted by an attorney or non-attorney-mediator selected from the court's roster. The program has been in effect since 1991. The mediation session, which is confidential, may occur at any time appropriate for the case but no later than ten days before the final pretrial conference. The court believes the session is most beneficial if some discovery has taken place. Parties must submit a confidential statement to the mediator before the mediation session and must attend in person. The role of the mediator is to help the parties resolve the case by mutual agreement. If asked by the parties, the mediator may also provide a confidential evaluation of the merits and value of the case. The parties and the mediator agree on a fee, which is split evenly by the parties. The specific procedures are stated in mediation orders issued by the individual judges.

Number of cases. During 1994, approximately 100 cases were referred to mediation.

Case selection

Eligibility of cases. Most civil case types are eligible for referral to mediation. Excluded are all cases exempted from the Rule 16 scheduling order and cases that involve pro se parties.

Referral method. All eligible cases are automatically referred to mediation. Parties receive notice of referral in the Notice of Preliminary Pretrial Conference and discuss the referral with the judge at the preliminary pretrial conference. Only one mediation session is mandatory. Others may be held at the parties' discretion.

Opt-out or removal. To be removed from mediation, parties must seek written leave of the court.

Scheduling

Referral. Cases are referred to mediation at the initial pretrial scheduling conference.

Written submissions. Five days before the mediation session, each party must submit to the mediator a confidential settlement statement of ten pages or less, which is not filed in the record or served on other parties. The statement must set out (1) the legal and factual contentions of the parties as to both liability and damages; (2) the factors considered in arriving at the current settlement posture; and (3) the status of settlement negotiations.

Mediation session. The mediation session may occur at any time but not later than ten days before the final pretrial conference. The parties schedule the time and place for the session.

Number and length of sessions. Only one mediation session is mandatory, but others may be scheduled if all agree that it would be worthwhile. No specific length of time is suggested.

Program features

Discovery and motions. All other case events go forward during the mediation process. In a few instances discovery has been stayed because the parties thought the prospects for settlement were good. Leave of the court is needed to stay discovery or any other scheduled event.

Party roles and sanctions. Attendance by all parties is mandatory. If an insurance company is involved, the court requires a person with full settlement authority to be present if possible or continuously available by telephone. Parties must obtain leave of court to participate by telephone or to be excused from participation. The court may impose sanctions on any party or counsel who fails to comply in good faith with the order to mediate.

Outcome. At the close of the mediation process the mediator files a short report noting the status of settlement negotiations and providing any comments that would be helpful in achieving settlement. The report, which is kept in a file in the clerk's office, is not part of the official record and is not made available to the public. Parties may request that the information in the report be kept confidential or that the terms of settlement, if there is one, be kept confidential. In such instances, no further report is made.

Confidentiality. Parties may request that the mediation discussions and outcome be kept confidential.

Neutrals

Qualifications and training. The court's roster is composed of attorneys and non-attorneys who have responded affirmatively to a court questionnaire asking whether they wish to be listed on the roster of mediators. The roster notes the individual's areas of expertise and whether he or she is certified by the state of Indiana as a trained mediator or has received formal training in mediation.

Selection for case. Parties must come to the preliminary pretrial conference with an agreed-on name of a mediator selected from the court's roster. If the parties cannot agree on a mediator, the court appoints one from its roster.

Disqualification. The court has not established rules for disqualification.

Immunity. The court does not specify protections for the mediators but is aware of a recent D.C. Circuit decision, Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994) (court-appointed mediator or neutral case evaluator has quasi-judicial immunity when performing official duties).

Fees. The parties and mediator must agree on a fee, to be divided equally by the parties and to be paid within thirty days of the mediation session. Indigent parties may petition the court to modify the mediation fee.

Program administration

The magistrate judge who is responsible for all pretrial matters in the case supervises the mediation process.


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