District of Kansas
IN BRIEF
Process summary
Mediation.
In the District of Kansas, each district judge is authorized to refer almost any civil case on his or her docket to a mandatory mediation conference conducted by an attorney-mediator. See below.
Other ADR.
In addition to mediation, Local Rule 214 and the court's CJRA plan approve most forms of ADR, including minitrials and summary jury trials.
Of note
Obligations of counsel.
Attorneys must discuss ADR options with their clients and with opposing counsel and demonstrate in their case management plan that they have done so. They must also be prepared to discuss ADR with the judge.
For more information
Richard C. Hite, Coordinating Attorney, 316-265-7761; John Thomas Reid, U.S. Magistrate Judge, 316-269-6411
IN DEPTH
Mediation in Kansas
Overview
Description and authorization.
In the District of Kansas, each district judge is authorized to refer almost any civil case to a mandatory mediation conference conducted by an attorney-mediator, a magistrate judge, or a trial judge other than the assigned judge. The district-wide mediation program is authorized by the court's CJRA plan, effective December 31, 1991, and by amended Local Rule 214. The program is based on the mandatory mediation process instituted in the Wichita division in 1984. Under the current program, most civil cases are referred to mediation, and each judge uses his or her own mediation protocols and orders. The session is confidential, attendance by a party representative with settlement authority is required, and the mediator is authorized to provide an evaluation of the merits of the case at the request of the parties. Joint and private sessions are used.
Litigants are encouraged to select a mediator from the court's roster of trained mediators. When a mediator is selected, the litigants pay a court-set fee of $125 per hour, shared equally by the parties. Cases in which a litigant is unable to pay a mediator's fee are referred to a magistrate judge for mediation.
Number of cases.
Approximately 270 cases were referred to mediation between January and September 1994.
Case selection
Eligibility of cases.
Almost all civil cases are eligible for mediation. Social Security appeals, bankruptcy appeals, and certain cases involving the United States are generally not referred to mediation.
Referral method.
Each judge has the discretion to refer any case to a mandatory mediation conference, and each judge follows his or her own protocol for referral. Generally, however, shortly after a case is at issue the assigned judge enters a scheduling order that urges the parties to explore settlement and mandates a mediation conference.
Opt-out or removal.
The assigned judge may remove a case from mediation if the court finds the process would be futile. Requests for removal are rare.
Scheduling
Referral.
Notice of the mandatory referral to mediation is sent to the parties in a scheduling order shortly after the case is at issue.
Written submissions.
Counsel are encouraged to submit short premediation statements to the mediator describing the factual and legal issues and the relief sought. The statements, which are not filed with the court, may or may not be shared with opposing counsel, depending on the details of the court's order.
Mediation session.
After discussion with counsel at a status conference held about thirty days after the initial scheduling order, the assigned judge sets the date and time frame for the mediation session. Early in the mediation program, most cases were set for mediation shortly before trial. As the program has developed, litigants are requesting earlier mediation conferences, often before substantial discovery has occurred. The mediation session is generally held at the office of the mediator, but it may also be held at the courthouse. Exhibits, expert witness reports, and other aids may be used at the mediation session.
Number and length of sessions.
A typical mediation session in a standard case lasts about four hours. In such cases, mediation generally involves only one session.
Program features
Discovery and motions.
Typically, some discovery takes place before the mediation session. Some judges may suspend discovery and motions activity around the time of the mediation session.
Party roles and sanctions.
In addition to trial counsel, a party representative with settlement authority must attend the mediation session. When the United States is a party, the requirement is met by attendance of the U.S. attorney for the District of Kansas. If the person with settlement authority cannot attend, the conference is rescheduled or appropriate accommodations are made on a case-by-case basis. The court's mediation rule does not specify whether or what type of sanctions might be imposed for failure to comply with the attendance and other requirements.
Outcome.
The mediator is asked to report to the judge only whether the case settled. Some judges require this in writing, others do not.
Confidentiality.
Mediation conference statements, memoranda submitted to the court, and any other communications that take place during the mediation process may not be used by the parties in the trial of the case. The mediator is barred from discussing the mediation conference with the trial judge.
Neutrals
Qualifications and training.
The court developed a district-wide list of attorney-mediators after consultation with all interested bar associations, review by a committee of the court, and approval by the full court. The criteria for selection include ten years in civil trial litigation and a good reputation. The court provides training for new mediators.
Selection for case.
District and magistrate judges, as well as attorneys, may serve as mediators. If an attorney is desired, the parties generally select the mediator from the court's roster of approved neutrals. Litigants are also free to select a mediator outside the court's list.
Disqualification.
The court has no formal guidelines for disqualification and reports that conflicts are generally addressed by the parties and the mediator. If a conflict becomes evident, the mediator informs the court.
Immunity.
The court does not have a rule regarding immunity but is discussing the issue. The court's view is that the mediator's role is quasi-judicial and entitled to quasi-judicial immunity.
Fees.
When an attorney-mediator is selected, the parties equally share the mediator's court-set fee of $125 per hour. No charges are incurred if a judge hosts the mediation.
Program administration
The mediation program is administered by each district judge for cases referred by that judge. Courtroom deputies handle ministerial issues and the assigned judge deals with substantive matters.
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