Western District of Kentucky
IN BRIEF
Process summary
Mediation.
The Western District of Kentucky is conducting an experimental mediation program in which any civil case is eligible for referral to mediation with the consent of the parties. See below.
Arbitration.
The Western District of Kentucky is one of ten courts authorized by 28 U.S.C. §§ 651-658 to establish a voluntary, nonbinding court-annexed arbitration program. The court has chosen not to implement such a program.
Other ADR.
The court has approved but not implemented an early neutral evaluation program. Occasionally, cases are referred to summary jury or bench trials conducted by a magistrate judge.
Judicial settlement conferences.
All judges conduct settlement conferences, and many cases are referred to the magistrate judges for settlement conferences.
Of note
Obligations of counsel.
Attorneys must be prepared to discuss ADR with the judge and must discuss in their case management statement whether ADR would be suitable for their case.
Plans.
Mediation and early neutral evaluation are not yet implemented via local rule. The goal of the judges is district-wide implementation.
Evaluation.
As one of the ten comparison districts under the CJRA, the Western District of Kentucky 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
John G. Heyburn II, U.S. District Judge, 502-582-6648
IN DEPTH
Mediation in Kentucky Western
Overview
Description and authorization.
In the Western District of Kentucky the judges have over the years made occasional referrals to mediation. More frequent use began in 1993, and the court is now conducting a pilot mediation program in which all civil cases are eligible for mediation with the consent of the parties. Although all the judges refer cases to mediation, the court has not established formal rules for the program, and the judges vary in their frequency of referral to mediation. Each judge fashions the procedure as needed for the specific case and maintains his or her own list of mediators consisting of both attorneys and other qualified persons. Counsel may also recommend another mediator for the court's consideration. The parties pay the mediator's fee.
Number of cases.
Between November 1, 1993, and November 1, 1994, twenty-eight cases were referred to mediation.
Case selection
Eligibility of cases.
All cases are eligible for mediation. No case types are excluded from consideration for mediation.
Referral method.
Cases are referred with the consent of the parties on a case-by-case basis.
Opt-out or removal.
There is no opt-out procedure because referral occurs only with party consent.
Scheduling
Referral.
Referral may be made at the initial scheduling conference or at any other time appropriate for the case.
Written submissions.
The mediator determines whether any materials should be submitted before the mediation session.
Mediation session.
The district judge sets the time limits for the mediation process after consultation with the parties. The neutral and the parties make arrangements for the mediation session, which can be held at the courthouse, the neutral's office, or elsewhere, depending on the needs of the parties.
Number and length of sessions.
The length and number of sessions are determined by the mediator and parties. The district judge, after consultation with the parties, sets the total period of time to be given to the mediation process and monitors compliance.
Program features
Discovery and motions.
Other case activities are suspended during the mediation process, unless something is needed to facilitate the mediation.
Party roles and sanctions.
Party attendance is determined by the mediator and counsel. The court has not established authorization to sanction for noncompliance.
Outcome.
The mediator determines how to notify the court of the outcome. The notice may state only whether a resolution was reached.
Confidentiality.
Contact is allowed between the neutral and the judge for purposes of status updates only.
Neutrals
Qualifications and training.
Each judge maintains a small roster of attorneys and other qualified persons who have the skills and training needed to mediate. The court has not established training requirements.
Selection for case.
The mediator is selected from the court's roster by mutual agreement of the parties and the court. Selection depends on the needs of the case and may require (1) a person with specific training in mediation; (2) a person with specific expertise in the subject matter giving rise to the dispute; or (3) a person with particular sensitivity or hands-on experience with the issues. The parties may also propose a mediator not on the court's roster.
Disqualification.
The mediator must disclose any potential conflicts.
Immunity.
The court indicates that mediator immunity is established by legal precedent.
Fees.
The parties pay the mediator's fee, which varies from case to case. Generally, the parties agree on the total amount to be spent and share the costs equally. If they do not, the judge specifically states who is responsible for payment and sets a maximum amount the mediator may charge.
Program administration
Each judge administers his or her 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