Southern District of Ohio
IN BRIEF
Process summary
Settlement week.
The Southern District of Ohio has established a settlement week program in which settlement-ready cases are referred to mediation conferences hosted by attorney-mediators during designated settlement weeks. See below.
Other ADR.
Under Local Rule 53.1, the court may assign any civil case to a summary jury trial, nonbinding arbitration, settlement week conference, or other alternative dispute resolution method. The court encourages litigants to use the court's ADR services and to fashion dispute resolution processes suited to their needs. One judge uses a standard pretrial order listing a menu of ADR options. In appropriate cases, judges encourage litigants to consider private dispute resolution services available in the community.
Settlement masters and summary jury trials are used in appropriate cases, particularly in complex litigation. A mandatory, nonbinding court-annexed arbitration program was used at one time in the Cincinnati Division, but has been discontinued.
Judicial settlement conferences.
Local Rule 53.1 and General Order 88-5 authorize the district and magistrate judges to conduct settlement conferences for most civil cases that appear ready for settlement. Referral may occur on the request of the parties or by order of the judge.
Of note
Information from court. The court has prepared a brochure-What is Settlement Week?-that explains for counsel and parties the settlement week program in the Columbus Division.
For more information
Norah McCann King, U.S. Magistrate Judge, 614-469-2191; Jack Sherman, U.S. Magistrate Judge, 513-684-3855
IN DEPTH
Settlement Week in Ohio Southern
Overview
Description and authorization.
The primary ADR approach in the Southern District of Ohio is settlement week, a program in which settlement-ready cases are referred to mediation with volunteer attorney-mediators during designated weeks each year. Cases are selected for referral on a case-by-case basis after review by the assigned judge. Referral is mandatory and does not require party consent. The settlement week mediation conferences are conducted by experienced federal litigators trained in mediation. Magistrate judges may conduct additional conferences in cases not resolved during settlement week. The settlement week program is authorized by Local Rule 53.1, Eastern Division General Order 91-4, and Western Division General Order on Settlement Week Mediation.
The use of settlement week mediation is most extensive in the Columbus Division, where the program has been established for almost a decade and where the twice-annual settlement weeks are scheduled to coincide with a similar state court program. In the Cincinnati Division, a "continuous settlement week" was recently instituted, in which settlement-ready cases are referred to mediation throughout the year. The program, which is similar to mediation programs in other districts, has had limited use so far. In the Dayton Division, establishment of a settlement week program has been proposed but not yet implemented.
Number of cases.
Between January and September 1994, 141 cases were referred to settlement week; 131 were referred in the Columbus Division, and 10 in the Cincinnati Division.
Case selection
Eligibility of cases.
Almost all civil trial-track cases are eligible for referral to settlement week except prisoner litigation and Social Security appeals.
Referral method.
The judge who handles pretrial matters selects cases for mandatory referral to settlement week. Party consent is not required. In Columbus, the magistrate judges generally assign cases to a specific settlement week at the initial Rule 16 conference. Parties may also request referral to settlement week mediation.
Opt-out or removal.
Counsel may request removal from settlement week by written memorandum to the assigned judge, after conferring with the client and opposing counsel. If the request is based on insufficient discovery, the moving party must describe the status of discovery and indicate when parties will be prepared for settlement. If the request asserts that the parties' settlement positions are too far apart to justify the expense of mediation, the memorandum must state each party's settlement position and the factual and legal bases underlying it.
Scheduling
Referral.
In Columbus, cases are selected for referral to settlement week by the assigned magistrate judge, often at the initial Rule 16 conference. Formal notice of referral is then sent to counsel by the court staff.
Written submissions.
Court staff give the mediators relevant portions of the case file. At least two weeks before the settlement week mediation conference, each plaintiff must submit a written demand to opposing counsel, and no later than one week before the conference, each opposing party must respond in writing. The mediator receives copies of all offers and responses.
Settlement week sessions.
In Columbus, settlement week occurs each year in the third week of June and the first week of December, which coincides with the large settlement week program in the state courts in Columbus. Settlement week mediation conferences are held at the courthouse, and scheduling is handled by court staff. Most cases are sent to settlement week after discovery and motions practice have been completed, although earlier settlement week participation is increasing.
Number and length of sessions.
During settlement week, each case is allotted a one-and-a-half-hour conference. Frequently, the mediator and parties will agree to continue negotiations beyond the time scheduled.
Program features
Discovery and motions.
In most cases referred to settlement week, discovery and motions practice have been completed. In the cases in which discovery has not been completed, the judge may stay further discovery until the settlement week process has ended.
Party roles and sanctions.
The trial attorney for each party and the principal with settlement authority must attend the settlement week mediation session. Failure to negotiate openly and honestly about the case may result in sanctions.
Outcome.
When the mediation concludes, the mediator files a short report with the court, addressing whether or not the case settled, whether parties and counsel complied with the court's attendance requirements and exchanged offers and demands as required, and whether additional discovery, motions, or judicial settlement conferences would be productive. The district or magistrate judge uses the report to schedule further proceedings if appropriate.
Confidentiality.
Settlement week mediations are covered by Fed. R. Evid. 408.
Neutrals
Qualifications and training.
The court has established a mediation panel of experienced litigators. Those who want to be on the panel must complete a mediation training course sponsored by the bar association.
Selection for case.
The court staff randomly assigns a mediator to the case from the court's panel of approved mediators.
Disqualification.
The court staff checks to see that the assigned mediator is not affiliated with either counsel. The mediator is expected to conduct a conflicts review and advise the court of any problems.
Immunity.
This issue has not arisen in the district, but the court believes that mediators would enjoy quasi-judicial immunity, under Mills v. Killebrew, 765 F.2d 69 (6th Cir. 1985), and Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994) (court-appointed mediator or neutral case evaluator has absolute quasi-judicial immunity when performing official duties).
Fees.
The mediators serve without compensation.
Program administration
In Columbus and Cincinnati, the settlement week program is supervised by a magistrate judge in each division. The magistrate judges' courtroom deputies provide all clerical support.
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