Western District of Missouri
IN BRIEF
Process summary
Early assessment program (EAP).
The Western District of Missouri is one of five demonstration districts designated by the Civil Justice Reform Act. The Act directs the district to experiment with various methods for reducing litigation costs and delay, including ADR. In response, in the spring of 1992, the court established the Early Assessment Program, an experimental program for early case evaluation and settlement. The purpose of the program is to assist parties in selecting one of the court's nonbinding ADR processes, which include mediation with an attorney-neutral, ENE, nonbinding arbitration, settlement conference with a magistrate judge, and summary jury trial. Alternatively, parties may choose to mediate their case with the EAP program administrator.
Listed below are the different forms of ADR offered as part of the Early Assessment Program, along with the number of cases referred to each type. Altogether, between January and September 1994, 147 cases were automatically referred to the EAP program; litigants in an additional 66 cases requested referral to the program. See below.
Mediation.
Mediation may occur as part of the first early assessment session, in which case it is conducted by the EAP administrator, or as a follow-up to the initial session. If conducted as a follow-up, the parties may choose the EAP administrator as mediator, or they may select an attorney from the court's roster of certified neutrals. If the parties select the EAP administrator as mediator, no fees are incurred. If a neutral from the court's roster is selected, the parties pay the neutral at his or her established professional rate. Between January and September 1994, 142 of the 147 cases that were automatically referred to the EAP program selected mediation.
Early neutral evaluation (ENE).
When parties select ENE as their ADR process, they may select a neutral-evaluator from the court's roster of certified neutrals or, with consent of the EAP administrator, from the private sector. In this court, ENE serves primarily as a settlement vehicle rather than as a method for case planning. Between January and September 1994, four of the cases automatically referred to the EAP program selected early neutral evaluation.
Arbitration.
Under the court's arbitration procedures, a single arbitrator who is selected by the parties from the court's roster or another source presides at the hearing. The arbitrator's decision becomes a nonappealable, final judgment of the court unless a timely appeal is filed by a party. No fees are required to request a trial de novo. The court's arbitration program was first established in 1985 and is authorized by 28 U.S.C. §§ 651-658, which designates the district as one of the ten pilot courts for mandatory nonbinding arbitration. The mandatory program is no longer in effect, having been replaced by the Early Assessment Program. Between January and September 1994, one of the cases automatically referred to the EAP program selected arbitration.
Summary jury trial and other ADR processes.
The general order authorizing the EAP also broadly authorizes the use of other forms of ADR, including summary jury trial, minitrial, binding arbitration, or other "hybrid form[s] of alternative dispute resolution." These ADR processes are seldom used. If the EAP administrator approves, litigants may select a private provider of ADR services not included on the court's roster of neutrals.
Magistrate judge settlement conference.
Another option under the EAP is a settlement conference with a magistrate judge. The conference is confidential and informal and may include, with party agreement, private discussions or caucuses between the magistrate judge and each side. The purpose of the conference is "to permit an informal discussion between the lawyers, parties, and the magistrate of every aspect of the lawsuit, thus permitting the magistrate privately to express his or her views concerning the actual dollar settlement value or other reasonable disposition of the case" (EAP General Order, Section VII.B.4). Cases not referred to the EAP may also be referred to the magistrate judges for settlement conferences. In these cases, referral usually occurs after discovery is complete.
Of note
Obligations of counsel.
Counsel in cases assigned to the Early Assessment Program must discuss the court's ADR options with their clients, opposing counsel, and the judge assigned the case.
Evaluation.
The court's mandatory arbitration program was included in the Federal Judicial Center's evaluation of the ten mandatory arbitration programs, Barbara Meierhoefer,
Court-Annexed Arbitration in Ten District Courts
(Federal Judicial Center 1990). The Early Assessment Program is monitored on an ongoing basis by the court's EAP administrative and systems staff. As a demonstration district under the CJRA, the Western District of Missouri is also part of the Federal Judicial Center study of the demonstration districts, which will be reported to Congress by the Judicial Conference in 1996.
For more information
Kent Snapp, Administrator, Early Assessment Program, 816-426-3060
IN DEPTH
Early Assessment Program in Missouri Western
Overview
Description and authorization.
As a demonstration district under the Civil Justice Reform Act, the Western District of Missouri has established an experimental ADR program to encourage early case evaluation and settlement. The program was implemented in the spring of 1992 in the Kansas City Division and is called the Early Assessment Program (EAP). One-third of all eligible civil cases are randomly assigned to mandatory participation in the Early Assessment Program. Another one-third of eligible civil cases are invited to participate, and the remaining one-third are excluded from participation as a research control group. The court adopted the random assignment system to provide the comparison groups needed to evaluate the effects of the EAP program. Program details are set out in the court's General Order Regarding the Early Assessment Program.
In cases referred to the EAP, counsel and parties are required to meet with the EAP administrator within thirty days of filing responsive pleadings to pursue early assessment and settlement of their case. The goals of the program are to improve party-to-party communication, assess the case and its management needs early, attempt early solution of the case through facilitated negotiation, and help litigants select a nonbinding ADR process from the district's ADR menu. As originally conceived, the initial early assessment session was to be followed by a mandatory referral to an ADR process of the parties' choice-mediation, ENE, nonbinding arbitration, settlement conference with a magistrate judge, and summary jury trial. In practice, almost all cases have remained with the EAP administrator for further settlement assistance, with the mediation session often occurring at the initial assessment session. There is no fee for the administrator's services, whereas if parties use a neutral from the court's roster, they must pay the neutral's fees.
Trial counsel and parties with full settlement authority must attend the early assessment session. The facts and law of the case are discussed by the parties in joint session, and then the EAP administrator meets separately with each side in confidential sessions. Any discovery or other problems inhibiting early case evaluation are identified, possible solutions are discussed, and facilitated negotiations are started. If limited discovery is needed for assessment or settlement, or if additional time is advisable for other reasons, a second meeting is scheduled. An average of 1.6 meetings are held per case. Parties are required to attend all scheduled EAP meetings unless the EAP administrator determines otherwise.
Number of cases.
Between January and September 1994, 147 cases were automatically referred to the EAP. Litigants in an additional 66 cases requested entry into the program. Almost all cases were mediated by the program administrator, with a few cases choosing ENE, mediation, or arbitration conducted by a neutral selected from the court's roster.
Case selection
Eligibility of cases.
Almost all newly filed civil cases are randomly placed in one of three categories. One-third of the cases are assigned to the EAP and are required to attend an early assessment meeting with the program administrator. One-third are invited to participate in the EAP if all parties consent. The remaining one-third of the cases are a control group and are not allowed to participate in the program.
The following case types are not eligible for assignment to the EAP: multidistrict cases, Social Security appeals, bankruptcy appeals, habeas corpus actions, class actions, student loan cases, prisoner pro se cases, and other pro se cases in which a motion for appointment of counsel is pending.
Referral method.
At filing, cases randomly designated for automatic inclusion in the Early Assessment Program are sent a notice of inclusion. On filing of responsive pleadings, cases eligible to volunteer for the program are sent an invitation to participate. At the initial EAP session, parties in the automatic referral group must choose some form of ADR, which may be conducted by the EAP administrator (if it is mediation) or a court-certified neutral (for any form of ADR). Parties voluntarily participating in the EAP may choose, after the first session, to discontinue their efforts or to stay in the program. If they stay in the program, they may select any form of ADR, including mediation with the EAP administrator or any process conducted by an attorney-neutral.
Opt-out or removal.
Parties may request removal from automatic inclusion in the EAP by letter to the EAP administrator within ten days of receiving the notice of inclusion. An appeal of the EAP administrator's decision to the assigned district judge is permitted. Withdrawal is granted when the EAP administrator or the judge believes that ADR cannot help the case.
Scheduling
Referral.
The parties must make their ADR selection at the first early assessment meeting, which is scheduled within thirty days of filing responsive pleadings.
Written submissions.
Parties are not required to submit any written statements before the EAP session. However, if parties select either arbitration or early neutral evaluation, the following requirements apply:
Arbitration:
At least seven days before the hearing, each party must serve on all parties a list of all witnesses and depositions to be presented at the hearing, as well as copies of written exhibits. In addition, each party must submit a statement to the arbitrator summarizing claims, critical factual issues, and contested legal issues.
ENE:
At least seven days before the evaluation session, each party must submit to the evaluator and all parties a statement of ten pages or less describing the facts and law, identifying disputed legal and factual issues, and indicating whether any early rulings or additional discovery would assist settlement. Counsel and parties attending the ENE session are also identified. Significant documents and other evidence may be attached.
EAP sessions.
Early assessment meetings are held at the courthouse, and the first meeting is scheduled within thirty days of the filing of responsive pleadings. Generally, cases subject to the EAP must complete any follow-up sessions and limited discovery within 90 days of the first session. The goal is to dispose of the case, if possible, within 120 days of the filing of responsive pleadings.
For cases that select an ADR procedure other than mediation with the EAP administrator, the administrator helps the parties and the neutral set the date and location for the initial ADR session. For cases that select arbitration, the time frame for the arbitration hearing is set by the program administrator. Within ten days of selecting an arbitrator, counsel are required to file a report with the EAP administrator stating the agreed-on hearing date.
Number and length of sessions.
The initial EAP session generally lasts from two and a half to three hours. The average number of sessions per case is 1.6 sessions.
Program features
Discovery and motions.
All other case activities, including discovery and motion practice, must go forward during the early assessment process and any subsequent ADR processes.
Party roles and sanctions.
In addition to counsel, parties with full settlement authority are required to attend the initial early assessment meeting. Party representatives with full settlement authority must also attend any subsequent EAP sessions and ADR sessions (arbitration, mediation, or early neutral evaluation). If a party fails to make a good faith effort to participate in the initial assessment meeting or any subsequent meetings, or fails to comply with any other program requirements in accordance with the provisions and spirit of the court's general order authorizing the EAP, the assigned judge or the court may impose appropriate sanctions. To date, none have been requested.
Outcome of ADR sessions.
Within ten days of the conclusion of any ADR session, the neutral must file a report with the EAP administrator stating whether all required parties were present and whether or not the case settled. In all cases subject to the EAP, the program administrator notifies the assigned district judge when the case has completed the EAP process.
In cases that select arbitration, the arbitrator files a written award with the program administrator promptly after the hearing ends. The award becomes a final judgment unless a party files a statement of nonacceptance with the administrator within thirty days of the filing of the award. In cases involving multiple claims or parties, any part of the arbitration award not specifically rejected by a party becomes part of the final judgment of the court.
Confidentiality.
In accordance with Fed. R. Evid. 408, any written or oral communication not under oath made in connection with this program may not be disclosed by the parties, their counsel, the neutrals, or any other participant in the program to anybody unrelated to the program. Further, communications made in connection with the program may not be used for any purpose, including impeachment of any witness or party in any pending or future proceeding in this court.
Communication between the program administrator or any other neutral and the assigned judge is authorized in limited circumstances. The administrator advises the assigned judge when a settlement has been reached and when he believes that the EAP process will not help the case. The administrator and neutrals may also bring to the attention of the assigned judge or the court en banc any noncompliance by parties or lawyers with this court's general order authorizing the EAP.
Neutrals
Qualifications and training.
To be included on the court's roster of neutrals, a candidate must be either (1) a former federal judge or Missouri state judge with arbitration or mediation experience, or (2) a lawyer admitted to practice in the district, a current member of the Missouri bar, and a member of a state bar for at least eight years. In addition, all applicants for the court's roster must satisfy the court's training requirements. Those who want to be mediators or evaluators must complete sixteen hours of training in mediation and case evaluation certified under Missouri Supreme Court Rule 17 or by the district court, or a reasonable equivalent thereof. Arbitrator candidates must complete four hours of training certified under Missouri Supreme Court Rule 17, certified by the district court, or a reasonable equivalent thereof.
Selection for case.
The program administrator, a court staff member with an extensive litigation background, hosts the initial EAP session and serves as mediator if the parties request.
For parties that choose to pursue ADR with a neutral other than the program administrator, the court has established a roster of court-certified mediators, arbitrators, and evaluators. The parties may select any ADR neutral on the court's roster or, with the program administrator's approval, a neutral not on the court's list. If the parties cannot agree on a neutral, the administrator will give them a random listing of neutrals for striking. When the EAP administrator prepares a list of neutral candidates, he or she does not usually select the potential neutrals for their subject matter expertise.
Disqualification.
Mediators are disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must disqualify themselves in any action in which they would be required by 28 U.S.C. § 455 if serving as a judge. Any party who believes that a neutral has a conflict of interest or should be disqualified must notify the EAP administrator immediately.
Immunity.
The EAP administrator is presumed to have quasi-judicial immunity.
Fees.
There is no fee when the EAP administrator serves as the mediator. The parties pay other neutrals at the rate set by the neutral and listed in his or her application with the court. The neutral's fees are borne equally by the parties.
Program administration
The EAP is directed by the program administrator, who reports to the district judges. The program administrator is assisted by a management analyst and a program secretary, both of whom are clerk's office employees operating under the supervision of the EAP administrator.
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