District of Nebraska


IN BRIEF

Process summary

Mediation. Under its Mediation Plan, adopted January 9, 1995, the District of Nebraska has authorized mediation for civil cases. See below.

Of note

Evaluation. The clerk is charged with evaluating the effectiveness of mediation in each case and assessing party satisfaction, cost savings, and time savings. The clerk must report to the court annually on the effects of the mediation program.

For more information

Lyle E. Strom, Senior Judge, 402-221-3421


IN DEPTH

Mediation in Nebraska

Overview

Description and authorization. The District of Nebraska authorized use of mediation in civil cases pursuant to a general order and its Mediation Plan, which was adopted January 9, 1995. Under the program, which went into effect in June 1995, any district or magistrate judge may refer a case to mediation when the nature of the case and the amount in controversy make resolution by mediation a possibility. Party consent is not required. Cases are referred after the answer is filed and after consultation with the parties. All other proceedings in the case are stayed on referral to mediation. Cases are referred to one of several mediation centers operated by the State of Nebraska Office of Dispute Resolution. At the mediation session, the parties may be required to present information to help the mediator understand the issues and the parties' interests. The mediator helps the parties by identifying issues, generating options, and proposing solutions, but he or she does not offer an evaluation of the legal merits of the case. Mediation proceedings are confidential. The fee, which is paid by the parties, is set by the mediation center handling the case, but is not more than $100 an hour.

Number of cases. No information is available on the number of cases referred to the mediation process.

Case selection

Eligibility of cases. A case may be referred to mediation when the judge determines that the nature of the case and the amount in controversy, together with the information available regarding the possibility of settlement, make resolution of the case by mediation a possibility. Such cases may include, but are not limited to: employment cases in which the parties have not previously engaged in conciliation proceedings; cases involving policy or practice questions that lend themselves to negotiation regarding actions or procedures to be taken in the future; cases in which the litigation costs are high in relation to the amount in controversy; cases in which the amount in controversy is determined to be less than $100,000; and cases in which the United States is a party and the parties to the litigation have not previously engaged in negotiations, work-out arrangements, or similar efforts. No case types are excluded from consideration for mediation.

Referral method. The assigned judge is authorized to refer any civil case to mediation after conferring with the parties and/or counsel. Party consent is not required. An order referring the case to the appropriate mediation center is issued by the judge.

Opt-out or removal. Any party may file an objection to the mediation referral within seven days of the court's order. If the party objects to a specific substantive matter or procedure, it must propose an alternative after discussing the matter with opposing counsel. Unless all parties agree to the proposal, the assigned judge will confer with counsel and/or parties to attempt to resolve the objection.

Scheduling

Referral. Cases are referred as soon as practicable after all defendants have answered the complaint.

Written submissions. There is no rule requiring written submissions. However, before the mediation session the mediator may ask counsel and/or the parties to provide information about the case, including material documents, exhibits and statements concerning the dispute, and information about any previous attempts to resolve it.

Mediation session. Within twenty days of the referral order, counsel must confer with the staff of the mediation center to schedule the mediation session. The mediation center sets the date, time, and location of the session, which must be held within sixty days of the order of referral or within ninety days if all parties agree to a continuance. Except as specifically provided by the court's Mediation Plan, mediation sessions must be conducted in accordance with the Nebraska Dispute Resolution Act (Neb. Rev. Stat. §§ 25-2901 to 25-2920).

Number and length of sessions. This information is not yet available.

Program features

Discovery and motions. The assigned judge stays all proceedings in the case pending the outcome of mediation.

Party roles and sanctions. All parties and counsel must attend the mediation session. Failure to attend may result in sanctions against the offending party and/or counsel.

Outcome. Within five days of the mediation session, the mediation center must report to the clerk whether the case settled and whether the fees for the mediation have been paid. If the case does not settle, the clerk notifies the assigned district or magistrate judge, who restores the case to the docket.

Confidentiality. All written or oral statements made only during the course of the mediation proceeding are confidential and are not admissible in evidence for any reason at trial should the case not settle.

Neutrals

Qualifications and training. An individual may be certified by the court to serve as a mediator if he or she has qualified under the requirements of the Nebraska Dispute Resolution Act; is an attorney in good standing in the state of Nebraska and the district court; has been admitted to practice law in any state for at least five years; and has completed at least fifteen hours of specialized training in mediating cases in federal court. Certification is effective for a period of five years, and a certified mediator is eligible for recertification for succeeding periods of five years. The court is offering training in mediation in cooperation with the Nebraska Office of Dispute Resolution.

Selection for case. The court maintains a list of certified mediators, which is made available to counsel and the public on request. The court also provides the list to the Nebraska Office of Dispute Resolution for use by its mediation centers. When a case is referred to a mediation center, the center selects a mediator from those certified by the federal court. In exceptional circumstances, an individual not certified by the court may be appointed to serve as mediator if the parties consent and the judge approves.

Disqualification. Mediators must meet the ethical standards established by the Nebraska Office of Dispute Resolution. In addition, a mediator: (1) must not have represented any of the parties in any previous matter; (2) must not be or have been affiliated with any firm or professional corporation or association that has represented any of the parties; (3) must not have any financial or other interest in any organization or entity that is a party or is related to a party; (4) must not hold any position, interest, or relationship to any party that might reasonably cause the mediator's impartiality to be questioned; (5) must not hold any personal interest, bias, or prejudice for or against any party; and (6) must not represent any of the parties for a period of at least six months following the mediation and after that may represent one of the parties only in a matter that is clearly distinct from the mediated issues. A mediator must withdraw if any of these requirements are not met or if any party so requests and makes a showing that the mediator does not meet these requirements or the court's standards for certification. Once the mediator withdraws, he or she may not act on behalf of any of the parties in the matter that was the subject of the mediation.

Immunity. The court has not addressed this issue.

Fees. The mediator is paid by the parties at a rate established in conjunction with the mediation center but not greater than $100 an hour. The fee may be divided equally or split in another way if the parties agree. If one or more of the parties is proceeding in forma pauperis, the mediation fees of that party may be paid from the Federal Practice Fund.

Program administration

The clerk's office administers the program.


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