Northern District of Oklahoma
IN BRIEF
Process summary
Evaluative mediation (Adjunct Settlement Judge Program).
The Northern District of Oklahoma offers litigants a variety of settlement and ADR processes under Local Rule 16.3. The most frequently used settlement approach is the court's Adjunct Settlement Judge Program, also referred to as evaluative mediation. See below.
Summary jury trial (SJT).
The court holds summary jury trials when witness credibility is an issue, when settlement talks have stalled over differing perceptions of the amount a jury is likely to award, and when the procedure can be completed in one day. The court's summary jury trial format calls for opening statements, evidentiary presentations, and closing arguments, and permits a limited number of key witnesses to testify in person. The consent of all parties is generally a prerequisite to summary jury trial use.
With the parties' consent, cases may be referred to summary jury trial by a judicial settlement judge or by an adjunct settlement judge. The parties may elect an advisory or binding verdict. If a binding result is sought, a high/low split technique is usually used. For this process, which is authorized by Local Rule 16.3(I), the parties set settlement brackets as the high and low boundaries. Between January and September 1994, one case was referred to summary jury trial. See also Executive Summary Jury Trial.
Minitrial.
In business disputes, where communication with or among the decision makers is seen as a problem, and the parties consent, the minitrial is occasionally used to facilitate settlement. It involves a summary presentation of the case to the chief executive officers of the companies or corporations involved in the dispute. The minitrial takes place at the courthouse, and the executives are robed and join the settlement judge on the bench. After the evidentiary presentation is completed, the settlement judge assists settlement discussions. The process is authorized by Local Rule 16.3 (I). Between January and September 1994, no cases were referred to minitrial.
Executive summary jury trial.
This process for business disputes combines elements of the summary jury trial, the minitrial, and evaluative mediation into a one-to-two-day settlement process. Use is generally contingent on party consent. The case is tried in summary form before both a jury and a three-"judge" panel consisting of the settlement magistrate judge and the two chief executive officers of the corporations involved in the dispute. The resultant evaluation of the case by advisory verdict is then used to further settlement discussions. The process is authorized by Local Rule 16.3(I). Between January and September 1994, no cases were referred to executive summary jury trial.
Settlement conferences.
The court promotes settlement efforts at the earliest possible stage in the case and authorizes mandatory judicially hosted settlement conferences under Local Rule 16.3(A). Referral practices differ from judge to judge; some judges schedule settlement conferences in all eligible cases, and other judges order settlement conferences only with party consent. If a judicially hosted settlement conference is ordered, a district judge other than the judge assigned the case or a magistrate judge generally presides. Parties may also elect to pursue settlement through the Adjunct Settlement Judge Program. In large part, the same settlement techniques-a combination of facilitative and evaluative mediation-are used by judges and adjunct settlement judges in the settlement conferences.
Of note
Obligations of counsel.
The Northern District of Oklahoma requires attorneys to read an ADR brochure provided by the court, to discuss the court's ADR options with their clients and with each other, and to be prepared to demonstrate to the court that they have done so. Attorneys must also discuss in their case management statement the case's suitability for ADR and must be prepared to discuss ADR with the assigned judge at the initial case management conference.
Information from court.
The court has prepared a brochure for counsel and clients describing its settlement procedures and ADR options.
Plans.
The court is considering expanding the size of the adjunct settlement judge roster and requiring more sophisticated initial and continuing training.
Evaluation.
The court maintains statistics on settlement rates.
For more information
John Leo Wagner, U.S. Magistrate Judge, 918-581-7976
IN DEPTH
Evaluative Mediation (Adjunct Settlement Judge Program) in Oklahoma Northern
Overview
Description and authorization.
The most frequently used settlement approach in the Northern District of Oklahoma is the court's Adjunct Settlement Judge Program. Instituted in 1989 by Local Rule 16.3, the program offers parties the option of selecting a settlement conference with a volunteer attorney, called an adjunct settlement judge (ASJ), in lieu of a judicially hosted settlement conference. The program is also referred to as evaluative mediation because the hybrid process combines aspects of mediation, settlement conferences, and case evaluation. If prolonged settlement assistance is required, Local Rule 16.3(G) authorizes the court to appoint the adjunct settlement judge as a "special project settlement or discovery judge" and to order the parties to compensate the neutral at a reasonable fee.
In the settlement process, each party first presents its side of the case, and then holds private caucuses with the ASJ. During the first phase, the ASJ uses facilitative techniques to help the parties reach agreement. If an impasse is reached, the ASJ assumes an evaluative role, offers an evaluation of the case, and explores settlement options. The settlement judge may then offer a settlement proposal privately to each party.
If both sides accept the proposal, the settlement is formalized. If one or all sides reject the proposal, the ASJ may, with the parties' consent, restate the proposal as a "take-it-or-leave-it deal" and direct each side to accept or reject the proposal within a set period, usually of several days. Each party conveys its decision confidentially by telephone to the supervising magistrate judge. Alternatively, if settlement is not achieved, the ASJ may help parties consider other ADR tools offered by the court, including summary jury trial, minitrial, or an executive summary jury trial. The consent of all parties is generally required before referral to another ADR process is made.
Number of cases.
Between January and November 1994, 416 cases were referred to the Adjunct Settlement Judge Program.
Case selection
Eligibility of cases.
Most civil cases are eligible for referral to the Adjunct Settlement Judge Program except cases in which a case management conference is not typically held, including Social Security appeals, bankruptcy appeals, other administrative review cases, routine governmental foreclosures, student loan cases, or prisoner cases.
Referral method.
Referral to the Adjunct Settlement Judge Program occurs after a case is referred to a settlement conference by judicial order, party agreement, or at the request of one party. Once the settlement conference referral has been made, the parties may elect referral to the Adjunct Settlement Judge Program, in lieu of participating in a judicially hosted settlement conference. The two-step referral process begins at the initial case management conference. The assigned district judge and parties discuss settlement plans, and the parties generally agree to participate in a future settlement conference. If a party objects to the settlement conference, the court reserves the right to require participation, but most judges rarely do. More often, if parties do not agree to participate in a court-sponsored settlement conference, the assigned district judge orders them to submit a settlement report by a certain date and advises the parties that a settlement conference will be ordered at the request of any party.
Opt-out or removal.
A joint motion to strike the settlement conference or to reschedule for a later date is usually favorably considered.
Scheduling
Referral.
Referral to the Adjunct Settlement Judge Program may occur at the initial case management conference or at any time appropriate to the case. When the referral is made, the court sends all parties a settlement conference order setting the date of the settlement event.
Written submissions.
Before the settlement process, each party must submit a settlement conference statement of five pages or less to all parties and the adjunct settlement judge. The statement sets forth the parties' legal and factual positions and describes the case's settlement history, including any specific offers and demands.
Settlement session.
The arrangements for the settlement session are made by court staff and the adjunct settlement judge. The settlement sessions may be held at the courthouse or at the ASJ's office. Settlement sessions are scheduled at the time deemed optimal to the case.
Number and length of sessions.
Settlement sessions rarely take more than one day. The sessions usually begin at 1:30 p.m. and continue for several hours until the case is settled or deadlocked. Usually only one session is held in a case.
Program features
Discovery and motions.
Other case activities go forward during the settlement process.
Party roles and sanctions.
In addition to an attorney who is fully familiar with the case, a person with full settlement authority must attend the settlement session. Other interested parties, such as insurers, must attend through fully authorized representatives. A governmental entity may, with written application and explicit permission only, proceed with a representative with limited authority. An application filed in bad faith or to impair settlement may be sanctioned. The adjunct settlement judge may permit a party to be available by telephone. The parties and their representatives must be completely candid with the adjunct settlement judge, who is authorized to meet with the parties without counsel if that would benefit the case. Failure to appear or to participate in good faith may result in sanctions. The ASJ may certify such behavior in writing, which is served on all parties, and may recommend an appropriate action.
Outcome.
For program monitoring, the ASJ submits a short report to the supervising magistrate judge regarding the results of the settlement session. Dismissals, consent judgments, confidentiality orders, and the like are filed in the case file. Other mediation documents, such as mediation conference statements, exhibits received during the conference, and draft settlement agreements, are kept in a separate, nonpublic mediation conference file.
Confidentiality.
Parties and counsel are expected to be completely candid with the settlement judge during the conference. Thus, confidentiality must be assured. Anything communicated during the conference may not be disclosed to any third party or to the assigned judge.
Neutrals
Selection for case.
After parties elect to participate in the Adjunct Settlement Judge Program, the supervising magistrate judge selects a volunteer lawyer from the roster of twenty-five trained neutrals. The magistrate judge matches the ASJ's area of expertise to the needs of the case.
Qualifications and training.
The court has recruited and trained the attorneys who serve as adjunct settlement judges. ASJs are selected by the court from among members of the bar in good standing and are chosen for their expertise, experience, impartiality, reputation for fairness, training, and temperament. They are unpaid, appointed for a year, and commit to conducting one session per month. Most ASJs are reappointed. Candidates must attend a daylong training seminar taught by the supervising magistrate judge and experienced ASJs.
Disqualification.
ASJs will be disqualified if any colorable challenge to their impartiality is made. Any party may confidentially contact the supervising magistrate judge and request the disqualification of the ASJ. Requests are reviewed with a presumption in favor of disqualification.
Immunity.
Local Rule 16.3(F) provides that "[n]o adjunct settlement judge may be called as a witness, except in an action to enforce the settlement agreement. In that instance, the ASJ shall not be deposed and shall testify as the court's witness."
Fees.
There is no fee for the adjunct settlement judge process. However, if the settlement effort is expected to be extensive, or in connection with discovery matters, the court may appoint an adjunct settlement judge as a "special project judge" and order the parties to pay for his or her time at a reasonable hourly rate. The fee is allocated among the parties as agreed to by the parties, or as ordered by the court.
Program administration
The program is administered by a magistrate judge and courtroom deputy. The ASJs, the district judges, and members of the bar generally take any significant problem regarding the ASJ program to the magistrate judge for resolution. The courtroom deputy handles routine scheduling issues. The court has established a permanent bench-bar case management and ADR advisory committee, which is responsible for monitoring current case management and ADR practices and making suggestions for modification.
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