Northern District of Ohio
IN BRIEF
Process summary
ADR and differentiated case management.
The Northern District of Ohio was selected by Congress to serve as a demonstration district for an experiment with differentiated case management (DCM) under the Civil Justice Reform Act of 1990. The district's DCM plan became effective January 1, 1992. Section 7 of the Local Rules sets forth a menu of ADR options that are key components of the district's DCM system and that are designed to provide litigants with quicker, less expensive, and more satisfying alternatives to traditional litigation, including early neutral evaluation, mediation, arbitration, summary jury trial, and summary bench trial.
Arbitration.
The Northern District of Ohio is one of ten district courts authorized under 28 U.S.C. §§ 651-658 to establish a voluntary, nonbinding court-annexed arbitration program. See below.
Mediation.
Any civil case may be referred to mediation by the court upon its own motion, on the motion of a party, or by agreement of all parties. See below.
Early neutral evaluation (ENE).
Any civil case may be referred to early neutral evaluation by the court on its own motion, on the motion of a party, or by agreement of all parties. See below.
Summary bench and jury trials.
The summary jury trial was created by former U.S. District Judge Thomas Lambros of this district court in the early 1980s. The summary jury trial, as well as a variant, the summary bench trial, are used by the judges in the Northern District of Ohio. Between January and September 1994, twenty-two cases were referred to summary jury trials and two cases were referred to summary bench trials.
Settlement week.
The court held a settlement week in 1994 to expedite resolution of a substantial number of short trial-ready cases.
Of note
Obligations of counsel.
Attorneys are required to discuss the court's ADR options with their clients and must be prepared to discuss at the case management conference whether the case is suitable for ADR.
Information from court.
The court provides to all counsel the brochure Differentiated Case Management and Alternative Dispute Resolution.
Evaluation.
The court's arbitration program was examined as part of a study of the voluntary arbitration courts-David Rauma & Carol Krafka,
Voluntary Arbitration in Eight Federal District Courts: An Evaluation
(Federal Judicial Center 1994). As one of the five demonstration districts under the CJRA, the Northern District of Ohio is 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
Peggy N. Daniels, ADR Administrator, 216-522-7580
IN DEPTH
Arbitration in Ohio Northern
Overview
Description and authorization.
The Northern District of Ohio is authorized by 28 U.S.C. §§ 651-658 to establish a voluntary, nonbinding court-annexed arbitration program. The court established its program, which is experimental, on December 13, 1991, through Local Rule 7.4 and its CJRA plan. Judges may refer any case to arbitration on their own motion, on request of a party, or on stipulation by all parties. Because the court's arbitration program is voluntary, any party may decline to participate by filing a statement with the ADR administrator within twenty days of the notice of referral. Referral generally occurs after most discovery has been completed. A panel of one or three arbitrators is selected by the parties from the court's roster. Within thirty days of the filing of an arbitration award, any party may file a demand for trial de novo. The case will then be treated as if it had not been referred to arbitration, except that no additional pretrial discovery is permitted without leave of the court for good cause.
Number of cases.
Between January and September 1994, four cases were referred to arbitration.
Case selection
Eligibility of cases.
Any civil case may select or be referred to arbitration. No case types are presumed ineligible or inappropriate.
Referral method.
A case may be referred to arbitration by the judge sua sponte, at the request of one party, or on stipulation by all parties with court approval. When arbitration is selected, the assigned judge issues an order referring the case. The ADR administrator provides written notice and a list of the appropriate number of proposed arbitrators to counsel and any unrepresented party.
Opt-out or removal.
Within twenty days of the written notice of selection, any party may decline to consent to arbitration by filing a written notice of nonconsent with the ADR administrator. The identity of the nonconsenting party is not disclosed to the judge. A judge may also exempt a case from arbitration if the objectives of arbitration would not be realized.
Scheduling
Referral.
A case may be selected for arbitration at the case management conference or at any time thereafter.
Discovery and motions.
Whether case activities proceed during arbitration depends on the assigned judge.
Written submissions.
At least five days before the arbitration hearing, each party must submit to each arbitrator and to each other party a set of relevant pleadings, a short memo stating its legal and factual positions, and exhibits.
Arbitration hearing.
Promptly after receiving the notice designating the arbitrators, the arbitrators schedule the arbitration hearing. The hearing may not be more than 30 days from the date of the notice of designation and not more than 180 days from the date of the filing of the answer or the date of the filing of a reply to a counterclaim. Unless the parties consent or the assigned judge orders, no hearing may begin for 30 days after disposition of motions to dismiss, for judgment on the pleadings, to join parties, or for summary judgment. Hearings may be held at any location in the district that is convenient for all involved.
Length of hearing.
Arbitration hearings generally last from a half to a full day.
Program features
Party roles and sanctions.
In addition to counsel, individual parties and corporate or insurer representatives with full settlement authority must attend the arbitration hearing. The court's rule does not specify whether or what type of sanctions might be imposed for noncompliance, but the court is not aware of sanctions having been imposed in any of the ADR processes.
Filing of award.
The arbitrator(s) must file the award with the ADR administrator within ten days of the hearing. The award must state the name of the prevailing party, the party against whom it is rendered, and the amount of the monetary award if any. The award must also specify which party is to pay the costs as provided in 28 U.S.C. § 1920 and whether interest is awarded. The award becomes the final judgment in the case unless trial de novo is requested.
De novo request.
Parties desiring trial de novo must file a request within thirty days of the filing of the arbitration award. The party requesting trial de novo must deposit with the ADR administrator a sum equal to the arbitrator(s)' fees as advance payment for costs (excluding parties proceeding in forma pauperis or the United States, its officers, or agencies). Any sum deposited is returned to the party demanding trial de novo if the party obtains a final judgment more favorable than the arbitration award or if the judge determines that the demand for trial de novo was made for good cause. The assigned judge may assess costs of the trial against the party demanding trial de novo if the party fails to obtain a judgment more favorable than the arbitration award or if the demand for trial de novo was taken in bad faith.
Confidentiality.
The content of any arbitration award is not made known to any judge unless (1) the assigned judge is asked to decide whether to assess costs regarding trial de novo requests; (2) the court has entered final judgment or the action has been otherwise terminated; or (3) the judge needs the information to prepare the 28 U.S.C. § 903(b) report required by the Judicial Improvements and Access to Justice Act. The assigned judge may not admit at the trial de novo any evidence that there has been an arbitration proceeding or the nature and amount of the award.
Neutrals
Qualifications and training.
Those appointed to the court's roster are lawyers who have been admitted to the practice of law for at least five years and are currently either members of the bar of the Northern District of Ohio or members of the faculty of an accredited Ohio law school. The court may waive these requirements to appoint other qualified persons with special expertise in particular substantive fields or experience in dispute resolution processes. Training for the court's neutrals includes an introduction and explanation of each of the court's ADR methods, model simulations with critiques, and refresher training involving judges and neutrals experienced in ADR.
Selection for case.
The court maintains a panel of neutrals approved by the court to serve in cases referred to arbitration, mediation, or early neutral evaluation. When a case is referred to arbitration, the ADR administrator randomly selects from the panel five potential arbitrators with expertise in the subject matter of the case. If there are multiple parties not united in interest, the ADR administrator adds an additional potential arbitrator for each party. The parties are provided with biographical information about each potential arbitrator. The parties must confer and select three arbitrators using a series of strikes spelled out in the local rule. If all parties agree in writing, they may select a single arbitrator. The parties are required to submit their final selection to the ADR administrator within ten days of the written notice of referral. If for any reason they fail to submit their selection, the ADR administrator selects the arbitrators from the five names selected by computer, after considering their expertise as it relates to the case and the geographical location of the panel member, counsel, and parties.
Disqualification.
If at any time an arbitrator becomes aware of or a party raises an issue with respect to the arbitrator's neutrality, the arbitrator must disclose the facts with respect to the issue. If a party requests that the arbitrator withdraw, the arbitrator may do so. If the arbitrator determines that withdrawal is not warranted, the arbitrator may continue, and the objecting party may then request the ADR administrator to remove the arbitrator. The ADR administrator makes the final determination.
Immunity.
The court has not addressed this issue.
Fees.
There is no cost to the parties for arbitration. The court compensates the neutrals at a rate of $250 per day or per case for a single arbitrator, or $100 per case or per day for each member of a panel of three arbitrators.
Program administration
The ADR administrator directs the administration and implementation of the court's ADR programs.
Mediation in Ohio Northern
Overview
Description and authorization.
Mediation is one of several ADR options offered by the Northern District of Ohio under Local Rule 7.3 and the CJRA plan, effective December 13, 1991. Cases are selected for mediation after the parties have conducted sufficient discovery to understand the strengths and weaknesses of the case, although mediation may be used earlier if the parties agree and the court approves. A case may be referred by the court on its own motion, on motion of one of the parties, or by stipulation of all parties with court approval. An attorney-mediator meets with the parties to facilitate settlement discussions and may hold both joint and private caucuses. If the parties fail to reach agreement or if the parties request, the mediator may submit a settlement proposal, which the parties may discuss with the mediator. The entire process is confidential.
Number of cases.
Between January and September 1994, 182 cases were referred to mediation.
Case selection
Eligibility of cases.
Any civil case may be referred to mediation. To date, case types referred to mediation have included marine; negotiable instruments; stockholders suits; contracts; land condemnation; foreclosure; personal injury; product liability; antitrust; civil rights, including prisoner; RICO; labor; ERISA; copyright, patent, and trademark; securities; tax; and environmental matters. No case types are presumed ineligible or inappropriate for mediation.
Referral method.
A case may be referred by the court on its own motion, on motion of one of the parties, or by stipulation of all parties with court approval. Upon selection, the assigned judge issues an order referring the case to mediation. The ADR administrator provides written notice to counsel and any unrepresented parties, along with a list of proposed mediators.
Opt-out or removal.
For good cause, a party may object to a referral to mediation when it is made by the court on its own motion. The party must file a written request for reconsideration within ten days of the court's order. The mediation process is stayed pending a decision on the request for reconsideration unless otherwise ordered by the court.
Scheduling
Referral.
Referral may be made at the initial case management conference, after discovery has been completed, or at any time that seems appropriate for the case.
Written submissions.
At least five days before the mediation session, the parties must submit to the mediator copies of relevant pleadings and motions, a short memo stating the legal and factual positions of each party, and any other material each party believes would be beneficial to the mediator. The parties' memos are not filed or shown to the judge.
Mediation session.
Promptly after receiving the notice of designation, the mediator schedules the mediation session, which must occur within thirty days of the date of the notice. The mediator notifies all parties and the ADR administrator of the date, time, and location of the mediation session, which is generally held at the mediator's office.
Number and length of sessions.
Although most cases participate in only one session that lasts four hours or less, some cases require several sessions and can take many hours.
Program features
Discovery and motions.
Whether other case activities proceed during the mediation process depends on the assigned judge.
Party roles and sanctions.
The attorneys who are primarily responsible for the case must personally attend the mediation session and must be authorized to discuss all relevant issues, including settlement. The parties must also be present. When a party is not an individual or is represented by an insurance company, an authorized representative of such party or insurance company with full settlement authority must attend. Willful failure to attend must be reported by the mediator to the ADR administrator for transmittal to the assigned judge, who may impose sanctions.
Mediator settlement proposal.
If the parties fail to reach agreement, or if at any time they request a settlement proposal, the mediator may give them a settlement proposal. Parties are requested to consider the settlement proposal carefully and discuss it with the mediator.
Outcome.
The mediator must report the results of the mediation to the ADR administrator within ten days of the close of the mediation session. If a settlement is reached, the mediator, or one of the parties at the mediator's request, must prepare a written settlement agreement signed by the parties, which is filed with the ADR administrator for approval by the court. If a settlement is not reached, the mediator must report in writing to the ADR administrator that the mediation was held, whether any agreements were reached by the parties, and the mediator's recommendation, if any, as to future processing of the case.
Confidentiality.
The mediation process is confidential. The parties and the mediator may not disclose information regarding the process, including settlement terms, to the court or to any third person unless all parties otherwise agree. There is no contact between the judge and the neutral, but the judge is advised of the report of the mediator.
Neutrals
Qualifications and training.
Members of the court's panel are lawyers who have been admitted to law practice for at least five years and are currently either members of the bar of this court or members of the faculty of an accredited Ohio law school. The court may waive these requirements to appoint other qualified persons with special expertise in particular substantive fields or experience in dispute resolution processes. The court trains the panel members, providing them with an introduction and explanation of each ADR method, model simulations with critiques, and refresher training sessions involving judges and neutrals experienced in ADR.
Selection for case.
With the written notice of referral, the ADR administrator provides the parties with a list of proposed mediators selected from the court's panel. Each party must rank the proposed mediators in order of preference and return the list to the ADR administrator within ten days. Once the ADR administrator receives all the lists, he or she selects a list at random and strikes the least preferred name, then moves to the next list and strikes the least preferred name. The remaining name is the selected mediator. The ADR administrator contacts the selected mediator and requests a conflict check. If no conflict exists, a written notice designating the mediator is sent to the mediator, counsel, and parties. If the parties fail to submit their rankings within the time specified, the ADR administrator selects the mediator from the proposed names, considering the panel members' expertise as it relates to the case and the geographical location of the panel member, counsel, and parties.
Disqualification.
The ADR administrator confers with the selected mediator concerning possible conflicts before sending the notice of designation. If the mediator or the parties later become aware of an issue regarding the mediator's neutrality, the mediator must disclose the facts to all parties. If a party requests that the mediator withdraw, the mediator may withdraw and the ADR administrator will appoint another mediator. If the mediator decides withdrawal is not warranted, the mediator may continue and the objecting party may then ask the ADR administrator to remove the mediator. The ADR administrator makes the final decision on the issue.
Immunity.
The court has not addressed this issue.
Fees.
Mediators receive no compensation for the first four and one half hours of service. Thereafter, the parties are equally responsible for the mediator's compensation at the rate of $150 an hour.
Program administration
The ADR administrator directs the administration and implementation of the court's ADR programs.
Early Neutral Evaluation in Ohio Northern
Overview
Description and authorization.
The ENE program in the Northern District of Ohio is authorized by the court's CJRA plan and Local Rule 7.2, both effective December 13, 1991. The judge may refer a case to ENE on his or her own motion, on the motion of one party, or by stipulation of all parties. Under the program, a neutral-evaluator meets with counsel and the parties early in the case to help them clarify issues, identify strengths and weaknesses of the case, agree to stipulations, plan discovery, and realistically assess the litigation costs and probable outcome of the case. The neutral-evaluator provides the parties with an evaluation of the legal and factual issues, to the extent possible at the early stage of the case. Early neutral evaluation is not generally a settlement tool, but settlement may be effected as a result of the session.
Number of cases.
Between January and September 1994, eighty-nine cases were referred to early neutral evaluation.
Case selection
Eligibility of cases.
Any civil case may be selected for ENE. No case types are presumed ineligible or inappropriate.
Referral method.
The judge may refer a case to ENE on his or her own motion, on the motion of one party, or by stipulation of all parties. After the judge issues the order referring the case to ENE, the ADR administrator provides written notice to counsel and to unrepresented parties, along with a list of potential neutral-evaluators.
Opt-out or removal.
There are no formal provisions in the local rule governing ENE removal. However, the parties may file a request with the judge to remove the case from ENE.
Scheduling
Referral.
Referral to ENE is made before or at the initial scheduling conference, or at any time that seems appropriate. Generally, referral occurs early in the case.
Written submissions.
At least five days before the evaluation session, each party must submit to the evaluator and serve on all other parties a written evaluation statement of no more than ten pages. The statement must identify the person, in addition to counsel, who will attend the session as a representative of the party with decision-making authority; identify any legal or factual issues whose early resolution might reduce the scope of the dispute or contribute to settlement; describe the discovery that is contemplated; and include as exhibits copies of all pleadings filed by the party submitting the written statement. The statement may include any other information the parties believe would be useful in preparing the evaluator and other parties for a productive session. In addition to the evaluation statement, the parties must prepare to respond to questions by the evaluator concerning estimated costs to that party, witnesses, damages, and plans for discovery.
ENE session.
The evaluator must schedule the ENE session promptly after receiving the notice of designation. The session must be held within thirty days of receipt of the notice unless otherwise ordered by the court. A request for postponement of a scheduled evaluation session must be presented to the ADR administrator, not to the evaluator. The session is held at the evaluator's office.
Number and length of sessions.
The majority of the ENE sessions are completed in one session lasting four hours or less.
Program features
Discovery and motions.
The assigned judge determines whether other case activities proceed during the early neutral evaluation process.
Party roles and sanctions.
Individual parties must attend the ENE session. When a party's interests are being represented by an insurance company, an authorized representative of the company with full authority to settle the case must attend. Willful failure to attend the ENE conference must be reported by the evaluator to the ADR administrator for transmittal to the assigned judge, who may impose sanctions.
Outcome.
Within ten days of the close of the ENE conference, the evaluator must report in writing to the ADR administrator that the ENE process was completed, any agreements reached by the parties, and the evaluator's recommendation, if any, as to future ADR processes that might resolve the dispute.
Confidentiality.
The entire ENE process is confidential. The parties and the evaluator may not disclose information regarding the process, including settlement terms, to the court or to third persons unless all parties agree otherwise.
Neutrals
Qualifications and training.
Neutrals appointed to the court's roster are lawyers who have been admitted to the practice of law for at least five years and are currently either members of the bar of this court or members of the faculty of an accredited Ohio law school. The court may waive these requirements to appoint other qualified persons with special expertise in particular substantive fields or with experience in dispute resolution processes. Training includes an introduction and explanation of each of the court's ADR methods, model simulations with critiques, and refresher training involving judges and neutrals experienced in ADR.
Selection for case.
Within ten days of the written notice of referral, the parties must agree on and advise the ADR administrator, in writing, of three proposed neutrals from the court's panel of neutrals. If the parties fail to advise the ADR administrator of their selection, the ADR administrator selects the neutral from the court's panel. After receiving the parties' selection, the ADR administrator contacts the proposed neutral and requests a conflict check. If no conflict exists, a written notice designating the neutral is sent to the neutral, counsel, and unrepresented parties.
Disqualification.
The ADR administrator makes an initial determination that the evaluator has no conflict of interest. If at any time after appointment, the evaluator or a party becomes aware of a conflict of interest and a party asks the evaluator to withdraw, the evaluator may do so. If the evaluator declines, the objecting party may request review by the ADR administrator.
Immunity.
The court has not addressed this issue.
Fees.
Evaluators receive no compensation for the first four and one half hours of service. Thereafter, the parties are equally responsible for the evaluator's compensation at the rate of $150 per hour.
Program administration
The ADR administrator directs the administration and implementation of the court's ADR programs.
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