Middle District of Louisiana
IN BRIEF
Process summary
Mediation.
The Middle District of Louisiana's CJRA plan, effective December 1, 1993, authorizes use of alternative dispute resolution programs designated for use in the district and authorizes referral of cases to private mediation with the parties' consent. See below.
Other ADR.
The court's CJRA plan authorizes the judges to order nonbinding minitrials or summary jury trials with or without the parties' consent. Summary jury trials are used more often than minitrials, usually in relatively simple factual disputes or where dollar amounts are contested.
Judicial settlement conferences.
All civil cases remain subject to a settlement conference with a judge. Approximately twenty-five cases were assigned to a settlement conference with a judge between January and September 1994.
Of note
Obligations of counsel.
Attorneys are required to discuss their ADR options with each other and their clients and must be prepared to demonstrate that they have done so. They must also be prepared to address the case's suitability for ADR with the assigned judge at the initial conference.
Plans.
The court will evaluate the court-based mediation program in 1995 to determine whether the program should be continued or expanded.
Evaluation.
Questionnaires are sent to attorneys and mediators participating in the court's mediation program.
For more information
Christine Noland, U.S. Magistrate Judge, 504-389-0286
IN DEPTH
Mediation in Louisiana Middle
Overview
Description and authorization.
Under its CJRA plan, effective December 1, 1993, the Middle District of Louisiana authorized a mediation program. The program, whose purpose is to help parties overcome obstacles to effective negotiation, became effective in September 1994. All civil cases are eligible for referral to mediation on consent of the parties. In practice, the court does not refer student loan cases, bankruptcy appeals, habeas corpus applications, Social Security claims, and most prisoner § 1983 cases. All others are considered on a case-by-case basis. The court offers two mediation options. Under the court's pilot court-based program, fifteen mediators have been sworn in and conduct sessions at no charge to the parties. The court may also refer cases to the Baton Rouge Bar Association, where mediators are selected from the association's roster and charge $250 for up to five hours, with additional fees negotiated for longer sessions. Both the court-based and association mediators may use shuttle diplomacy to facilitate the process, but they do not offer an evaluation of the case or give a decision to the parties. The mediation process in both programs is confidential.
Number of cases.
Between September 1994, when the court's mediation program was implemented, and November 1994, approximately twenty cases were referred to mediation under the court-based program. Figures are not available for the number of cases referred to the bar association program.
Case selection
Eligibility of cases.
All cases are eligible for referral to mediation. It is used most often in personal injury and contract disputes, as well as environmental, Title VII, mass torts, and other more complex cases.
Although mediation is authorized for any civil case, student loan cases, bankruptcy appeals, habeas corpus applications, Social Security claims, and most prisoner § 1983 cases are not referred.
Referral method.
Any district or magistrate judge may refer a case to mediation on consent of the parties. When a referral is made to the court-based program, the magistrate judge who directs the mediation program selects a mediator and a mediation order is sent to the mediator and parties. Under the bar association's mediation process, an order is entered showing that the case is proceeding to mediation.
Opt-out or removal.
The court may vacate any order of referral to a court-based mediator. In cases referred to the bar association's program, if mediation seems to be lagging, the court can set a date for trial and thus prompt the parties to decide whether to move forward with mediation.
Scheduling
Referral.
Most cases are referred to mediation after discovery has been completed; however, more parties are asking for mediation earlier, before hiring and deposing certain types of experts.
Written submissions.
The mediator may receive and consider affidavits, depositions, and other forms of written evidence agreed to by the parties or deemed by the mediator to be relevant and reliable. Position papers may be received in confidence. Timing for submission of these papers is at the discretion of the mediator.
Mediation session.
Currently, two to three months are allotted for completion of the mediation process. In some cases, the magistrate judge who assigns the neutral sets the date and time and finds an available mediator. In those instances, the time period can be a few days or one or two months. In the court-based program, the mediation sessions are scheduled in the courthouse, at the date and time selected by the magistrate judge, if set by the magistrate judge, or by the mediator and parties. Under the bar association's program, the mediation sessions are conducted at a place and time mutually agreed to by the parties and mediator. If they cannot agree, the mediator selects the location and sets the time.
Number and length of sessions.
Usually only one day is allotted for the mediation session. Normally, a session lasts three or four hours. More complex cases may require two or three days.
Program features
Discovery and motions.
In cases in which the parties consent to mediation to save discovery costs, all discovery is stayed during the mediation process. In other cases, where parties need additional discovery before mediation begins, the parties are permitted to continue discovery. In every case, whether referred to the court's program or the bar association's program, the court retains full control of the case.
Party roles and sanctions.
Parties with settlement authority and their counsel are required to attend all sessions. If an insurance company is a party and the representative is out of state, the representative may be allowed to be available by telephone during the mediation session. If only a board of directors can approve a final settlement, an attorney may be permitted to have present a representative who can make a recommendation to the board for later approval. There is currently no policy on sanctions for those who fail to attend.
Outcome.
In the court-based program, the mediator files a certificate of completion at the end of the mediation session. The certificate merely states that the session is complete, whether a settlement was reached, and, if so, which party will be filing the motion to dismiss.
In the bar association's program, counsel for all parties must jointly do one of the following within ten days of completion of the mediation conference: (1) If the mediation results in the settlement of all claims, the parties must file a joint motion for dismissal with the court. (2) If the mediation results in the settlement of a portion of the claims, the parties must file a written report with the court describing the claims that have been settled and the claims that remain so that the court can take appropriate action. (3) If the mediation does not result in settlement of any claims, counsel for the parties must file a written report with the court so the court can take appropriate action. Within three days of completion of the conference, the mediator must file a written report with the Baton Rouge Bar Association and must mail a copy to each party or its attorney of record and to the judge referring the case.
Confidentiality.
Under the court-based program, the magistrate judge signs a confidentiality order at the same time the mediation order is issued. The confidentiality order is sent to the mediator, who signs it and has all persons attending the session sign it before beginning the session. After the session is complete, the order is filed in the record. It provides that all mediation proceedings, including private caucuses between the mediator and a party, may not be reported, recorded, placed in evidence, made known to the court or jury, or construed as an admission. The mediator may not discuss the merits of the case with the trial judge during or after mediation and may converse with another mediator only after there has been a check for conflicts of interest.
Under the bar association's program, there may be no ex parte communications between a mediator and any counsel or party on any matter related to the action except for the process of scheduling or continuing the conference.
Neutrals
Qualifications and training.
To qualify as a mediator in the bar association's program, the mediators must be members in good standing of the Baton Rouge Bar Association and licensed to practice law in Louisiana by the Louisiana Supreme Court for at least five years or have been engaged in legal scholarship or teaching for at least five years. No mediation certification is required in the bar association's program.
The mediators in the court-based program must meet the bar association's qualifications or be certified by the court. Attorney-mediators must have had no disciplinary actions against them in their areas of expertise. Three nonlawyer mediators have volunteered for the program: two social workers and an engineer. All nonlawyer mediators must be certified as mediators. Two attorneys with experience in mediation have been allowed to participate without a certificate, but if the program continues, the court expects to require all mediators to be trained and certified. The court will provide training as funds allow.
Selection for case.
The magistrate judge administering the court-based program selects the mediator for the case. Under the bar association's program, the association provides each party with a list of five mediators selected from its master list. Within ten days of receipt of the list, each party must strike two names from the list, then rank the remaining three names in order of preference. The mediator with the lowest combined score is appointed. If there is a tie and the parties cannot agree, the mediator is selected by drawing lots. Parties also have the option of proceeding through an independent ADR organization. Parties generally select mediators who have expertise in the subject matter of the case.
Disqualification.
Any person selected as a mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must be disqualified in any case in which such action would be required of a justice, judge, or magistrate judge governed by 28 U.S.C. § 455. If a party who believes an assigned mediator has a conflict of interest does not bring it to the attention of the assigning judge within ten days of learning of the source of the conflict, the party will be deemed to have waived objection. The mediator has the same period of time to check for conflicts and decline the assignment.
Immunity.
In the court-based program, a "hold harmless" clause is part of the confidentiality agreement signed by all participants. Under the bar association's program, the parties agree to hold harmless the mediator, the Baton Rouge Bar Association, and the members of the Alternative Dispute Resolution Committee from any liability in connection with the mediation proceedings.
Fees.
In the court-based program, parties pay a $25 administrative fee directly to the mediator to cover the mediator's travel, telephone, and photocopying costs. Under the bar association's program, the parties equally share a $300 fee paid with the filing of the application for mediation, of which $50 is a nonrefundable administrative fee. The remaining $250 is the fee for all or any part of the first five hours of mediation. If the session is longer, an additional fee is negotiated. If the case settles before the mediation session, the $250 is refunded.
Program administration
The court-based program is administered by a magistrate judge. Other judges may refer cases to the magistrate judge for referral to a mediator.
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