Western District of New York


IN BRIEF

Process summary

Arbitration. The Western District of New York is one of ten courts authorized by 28 U.S.C. §§ 651-658 to establish a voluntary, nonbinding court-annexed arbitration program. See below.

Other ADR. In the fall of 1995, the Erie County Bar Association worked with the court to sponsor a pilot settlement week. The program was considered a success, and the court is now considering whether to establish regular settlement weeks or some other form of ADR.

Judicial settlement conferences. The court authorizes mandatory settlement conferences. Local Rule 16.1 provides that in all civil cases (other than pro se prisoner, habeas corpus, and Social Security cases) an initial settlement conference will be set for no later than ninety days after the issuance of a Rule 16 scheduling order. In addition, the court's CJRA plan, adopted September 1, 1993, provides that "Judges and Magistrate Judges will take an active role in encouraging the settlement of cases by bringing the parties together to discuss settlement in the presence of the Court."

Of note

Information from court. After the last responsive pleading is filed in any civil case other than a habeas corpus case or a Social Security appeal, the arbitration clerk sends information to all parties about the voluntary arbitration program.

Plans. Under the court's CJRA plan, additional court ADR programs are being considered.

Evaluation. The court's arbitration program is part of a study reported in David Rauma & Carol Krafka, Voluntary Arbitration Programs in Eight Federal District Courts: An Evaluation (Federal Judicial Center 1994).

For more information

Rachel Brody Bandych, CJRA Attorney, 716-263-6719; Susan M. Oogjen, Arbitration Clerk, 716-263-6719


IN DEPTH

Arbitration in New York Western

Overview

Description and authorization. The Western District of New York is one of ten pilot courts authorized by federal statute to provide voluntary, nonbinding court-annexed arbitration under 28 U.S.C §§ 651-658. The program was implemented in October 1992 under Local Rule 16.2, which authorizes arbitration in any civil case at any time before trial if all parties consent. One arbitrator or a panel of three arbitrators may be requested by the parties. Arbitrators may be appointed by the court from its roster of certified attorney-arbitrators, or the parties may select an arbitrator from another source. The arbitrators are paid by the court. If a noncourt arbitrator's fees exceed the court's rate of compensation, the parties are responsible for the difference.

Number of cases. Between January and September 1994, one case was referred to arbitration.

Case selection

Eligibility of cases. Nearly every civil case type may use arbitration with consent of all parties except Social Security cases and habeas corpus petitions.

Referral method. After the last responsive pleading is filed, the clerk notifies the parties that they may consent to arbitration at any time before trial. To trigger referral to arbitration, a consent form signed by all parties must be filed with the court. The arbitration clerk then notifies the parties in writing of the date, time, and place of the arbitration hearing.

Opt-out or removal. The local rules do not specify a procedure for removing a case from arbitration after it has been referred.

Scheduling

Referral. Parties may consent to arbitration at any time before trial. After the last responsive pleading and the arbitration consent form are filed, the arbitration clerk sends a notice to counsel setting the date, time, and location for the arbitration hearing.

Discovery and motions. All case activities go forward during the arbitration process and are handled by the assigned judge.

Written submissions. Once the order designating the arbitrators is filed, the arbitration clerk sends each arbitrator copies of all the pleadings, the court docket sheet, and the Guidelines for Arbitrators. At least ten days before the arbitration hearing, counsel submit to the arbitrators and opposing counsel copies of all exhibits to be used at the hearing and a list of all witnesses who will testify.

Arbitration hearing. If the parties file a request for an immediate hearing, one is scheduled within 30 days of the filing of the request. If no immediate hearing is requested, an arbitration hearing is scheduled no later than 180 days from the date the last responsive pleading was filed. Notwithstanding these rules, the arbitration proceeding does not commence until 30 days after the court disposes of any motion to dismiss the complaint, for judgment on the pleadings, or to join parties, if the motion was filed and served within 20 days of filing the last responsive pleading. Arbitration hearings are scheduled by the clerk's office and are held at the courthouse.

Length of hearing. Most arbitration hearings are concluded in less than a day.

Program features

Party roles and sanctions. Parties are required to attend the arbitration hearing. If a party fails to appear after being notified, the arbitration hearing proceeds without the absent party. The court's rule does not specify whether or what type of sanctions might be imposed for failure to comply with the attendance and other requirements.

Filing of award. The arbitrator must file the award with the clerk within ten days of the hearing. The clerk serves copies on the parties. If there is no request for trial de novo within thirty days of filing the award, the clerk enters the award as the judgment in the case.

De novo request. The party demanding trial de novo must do so within thirty days of the filing of the award and must deposit with the clerk an amount equal to the cost of the arbitrator's services. If that party fails to obtain a judgment in an amount that, exclusive of costs and interest, is more favorable to that party, the clerk pays the deposited sums to the U.S. Treasury. If the party obtains an equivalent or more favorable result, the party is reimbursed for its prepaid costs.

Confidentiality. The contents of the arbitration award are not made known to any judge who might preside at trial or rule on dispositive motions until the clerk has entered final judgment or the action has otherwise terminated. No evidence may be admitted at trial indicating that an arbitration proceeding has occurred, the nature or amount of the award, or any other matter concerning the arbitration proceeding.

Neutrals

Qualifications and training. An individual may be certified to serve as an arbitrator if he or she is a member of the bar of the State of New York; is admitted to practice before the Western District of New York; and is determined by the certifying judge to be competent to perform the duties of an arbitrator. No training is required for arbitrators.

Selection for case. The parties may proceed before one arbitrator or a panel of three arbitrators selected randomly by the clerk from the court's list of certified arbitrators. Alternatively, they may ask the court's permission to select an arbitrator from another source.

Disqualification. An arbitrator must inform all parties in writing as to whether the arbitrator or any firm or member of the firm with which the arbitrator is affiliated has, either as a party or as an attorney, at any time within the past five years been involved in litigation with or represented any party to the arbitration or any agency, division, or employee of such party. Furthermore, on motion made to the court not later than twenty days before a scheduled arbitration hearing, the court may disqualify an arbitrator for bias or prejudice as provided in 28 U.S.C. § 144. Arbitrators must disqualify themselves if they could be required to do so under 28 U.S.C. § 455 if they were a justice, judge, or magistrate judge.

Immunity. This subject is not addressed in the local rule.

Fees. Single arbitrators are compensated at the rate of $250 per case. Arbitrators who serve on a panel are compensated at a rate of $100 each per case. The court pays the fees of arbitrators selected from the court's roster. Outside arbitrators' fees must be paid by the parties to the extent that they exceed the approved rate of compensation.

Program administration

The court's arbitration program is administered by the clerk's office with the assistance of a liaison judge.


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