Western District of Oklahoma
IN BRIEF
Process summary
Magistrate judge settlement conferences.
The primary settlement tool in the Western District of Oklahoma is the settlement conference program in which a full-time magistrate judge serves as the court's settlement judge. Instituted in 1983 and authorized by Local Rule 17(i), settlement conferences are usually held after discovery is completed and trial preparation is underway. Mandatory referral is authorized and customary. Party consent is required for settlement conferences scheduled before the close of discovery.
Under the program, every civil case set on a published trial docket is scheduled for a settlement conference before the settlement magistrate judge (or another judge other than the trial judge if the settlement judge is not available). Several judges also refer bankruptcy appeals to the program. Settlement conferences generally last about two and a half hours and involve private caucuses with each party. More than one session is often held. Between January and September 1994, approximately 500 cases were referred to the magistrate judge settlement program.
Arbitration.
The Western District of Oklahoma is one of ten districts authorized by 28 U.S.C. §§ 651-658 to provide mandatory, nonbinding court-annexed arbitration in cases of $100, 000 or less. See below.
Mediation.
A court-wide mediation program aimed at early settlement was initiated under the court's CJRA plan, adopted December 31, 1991. See below.
Summary jury trial (SJT).
The summary jury trial has been used since 1983 for selected cases by almost all the judges. In the late 1980s as many as twenty to fifty cases a year were referred to summary jury trial. Mandatory referral by the assigned judge is permitted and customary; consensual referral has occurred but is rare. The SJT is generally used in trial-ready cases where trial is predicted to last five days or more and the expense of the SJT is justified by the likelihood of settlement. A magistrate judge presides over the hearing, which takes a half to full day. The court's procedures are outlined in its Handbook and Rules for Summary Jury Trial. Between January and September 1994, two cases were referred to summary jury trial.
Special masters.
The use of special masters for settlement and other case management tasks is an established, but rarely used, method of the court. Referrals are made only in complex cases.
Of note
Obligations of counsel.
Attorneys must address ADR in their case management statement and be prepared to discuss ADR options with the court at the initial case management conference. In their joint status reports, counsel must certify whether the case is eligible for mandatory nonbinding arbitration, state whether they would consent to nonbinding arbitration, and indicate whether they would like to participate in the court's early mediation program.
Information from court.
The court distributes to all counsel an ADR fact sheet and handbooks on arbitration, mediation, and summary jury trials.
Plans.
As part of its revision of local rules, the court is condensing all ADR and settlement rules into an ADR plan as an appendix to the revised rules. The Bankruptcy Court for the Western District of Oklahoma recently adopted a local rule on ADR. The court's ADR administrator is also working with the State Attorney General's Office and the State Department of Corrections to create a mediation program for prisoner grievances. The three federal districts in Oklahoma are discussing ways of sharing ADR resources.
Evaluation.
The district's arbitration program has been studied by the Federal Judicial Center. See Barbara Meierhoefer, Court-Annexed Arbitration in Ten District Courts (Federal Judicial Center 1990). As one of the ten pilot courts established under the CJRA, the Western District of Oklahoma is part of the RAND study of the pilot and comparison districts, which will be reported to Congress by the Judicial Conference in 1996.
For more information
Ann Dudley Marshall, ADR Program Administrator and Law Clerk to Settlement Magistrate Judge, 405-231-5821
IN DEPTH
Arbitration in Oklahoma Western
Overview
Description and authorization.
The Western District of Oklahoma is one of ten districts authorized by 28 U.S.C. §§ 651-658 to provide mandatory, nonbinding court-annexed arbitration in cases involving money damages only of $100,000 or less. The program, also authorized by Local Rule 43 and the district's CJRA plan, effective December 31, 1991, is described in the court's The Arbitration Handbook. Under the program, which was implemented in 1985, eligible cases are designated for mandatory arbitration by the assigned judge at the initial pretrial scheduling conference. Parties may also participate in the program by consent. The arbitration hearing is typically held shortly before the scheduled discovery cutoff date, usually no more than 180 days from the date the last answer was filed. The arbitrators' fees are set and paid by the court. Counsel participate in choosing either one arbitrator or a panel of three.
The court encourages its arbitrators to play varied settlement roles in addition to the traditional role of rendering an award based on law and facts. Arbitrators may discuss the case's strengths and weaknesses, and they occasionally conduct a settlement conference if appropriate.
Number of cases.
Between January and September 1994, eighty-six cases were referred to arbitration; seventy-five were mandatory referrals and eleven were referrals on consent of the parties.
Case selection
Eligibility of cases.
Eligible cases are those involving primarily money damages of $100,000 or less, exclusive of interest and costs. In addition, if the United States is a party and does not have monetary interest in the claim, arbitration is permitted in cases arising under the Federal Tort Claims Act, the Longshoreman's and Harbor Worker's Act, the Admiralty Act, or the Miller Act. Civil actions may also be referred to nonbinding arbitration if the parties consent. Consensual referrals are common in non-complex tort and contract cases involving claims over $100,000 as well as in employment cases. Ineligible cases include administrative reviews, prisoner cases, constitutional claims, bankruptcy appeals, and claims based on 28 U.S.C. § 1343 jurisdiction.
Referral method.
Eligible cases are identified at filing by the ADR administrator. Cases are mandatorily referred to arbitration by the assigned judge after review of the joint status report filed by counsel for the initial status conference. Parties may also participate in the program by consent. Formal notice of referral is provided by court order.
Opt-out or removal.
Eligible cases may be exempted from mandatory arbitration in two ways. First, at the initial pretrial scheduling conference, one or all counsel may request to have the case referred to an early settlement conference or mediation in lieu of arbitration. Second, within twenty days of an order referring the case to arbitration, a party may seek removal from arbitration on the grounds that the matter involves complex or novel legal issues, legal issues predominate over factual issues, or for other good cause.
Scheduling
Referral.
Eligible cases are generally referred to mandatory arbitration at the initial pretrial scheduling conference, although referral may also be made at any other appropriate time. Formal notice of referral is provided by court order.
Discovery and motions.
Streamlined discovery is encouraged. Case activities directed toward trial proceed during the arbitration process and any trial deadlines remain in effect unless suspended or continued by court order. Any issue relating to the arbitration of the case is directed to the assigned judge. If certain dispositive motions are filed before the initial pretrial conference, arbitration proceedings may be deferred pending the result. However, such motions filed after referral do not stay the procedure without order of the court.
Written submissions.
Ten days before the hearing, the parties must submit to the arbitrators and to the arbitration coordinator a joint statement listing all disputed and undisputed facts and legal issues. In addition, each party must submit to the arbitrators, opposing counsel, and the arbitration coordinator, a position statement of no more than five pages.
Arbitration hearing.
At the initial case conference, the arbitration hearing date is set after consultation with the assigned judge, counsel, and the court's arbitration staff. The arbitration hearing is typically held before the close of discovery and at least thirty days before the scheduled trial date. Logistical arrangements are made by the court's arbitration coordinator, and the hearing is generally held at the courthouse.
Length of hearing.
Although each party is permitted up to an hour to present its case, hearings typically last less than an hour and a half.
Program features
Party roles and sanctions.
In addition to counsel, clients or representatives with settlement authority are required to attend the arbitration hearing. Sanctions may be imposed for failure to appear by a person required to be present or other failures to participate in good faith. Such violations may also be treated as a default.
Filing of award.
At the conclusion of the arbitration hearing, the arbitration coordinator dockets an order indicating that the hearing was held. The arbitrator must submit the arbitration award to the clerk's office within ten days of the hearing. Copies are mailed to the parties and the award is filed under seal. If a demand for trial de novo is not made, the award is entered as the judgment in the case.
De novo request.
A demand for trial de novo must be made within thirty days of the filing of the arbitration award. When requesting a trial de novo, the moving party is required to submit a fee equal to the arbitrators' fees. On motion, the deposited fee may be returned if the final judgment is more favorable than the award or if good cause is shown.
Confidentiality.
The court's confidentiality rules protect against disclosure of the arbitration award to the trial judge and prohibit admission of evidence regarding the arbitration at trial. Contact between the arbitrator and the assigned district judge is prohibited. The arbitration summary and the joint stipulations are not made part of the case file. At the trial de novo, the court prohibits admission into evidence of any arbitration hearing transcript or other evidence regarding arbitration. The award is kept under seal until the action has been terminated. If trial de novo is requested, however, the results of the arbitration may be disclosed by the parties to the settlement conference magistrate judge at a mandatory settlement conference held shortly before trial.
Neutrals
Qualifications and training.
To become a member of the court's arbitration roster, candidates must have at least five years of law practice, be admitted to practice in the Western District of Oklahoma, and be determined by the court en banc competent to perform the duties of arbitrator. When the roster was formed in 1985 and expanded in 1989, training sessions were held for the arbitrators.
Selection for case.
The court's ADR staff provides a list of ten arbitrators drawn randomly from the court's roster. If an arbitrator with subject matter expertise is requested, a list of ten candidates with the requisite skills is prepared. Counsel confer to select a single arbitrator or, if all the parties request in writing, a panel of three. The court's ADR staff determines the candidates' availability and ascertains potential conflicts of interest. If counsel do not make a timely selection, the court staff selects the arbitrator.
Disqualification.
Arbitrators are required to disqualify themselves if any of the circumstances specified in 28 U.S.C. § 455 exist or may in good faith be believed to exist.
Immunity.
Because arbitrators are appointed by the court to the roster and to the specific case, the court believes case law would support immunity protection.
Fees.
The court sets and pays the arbitrator fees in both mandatory and consensual referrals. A single arbitrator receives $150 per case. When a panel of three is appointed, each arbitrator receives $100 per case.
Program administration
The program is managed and administered by an ADR administrator, who is a permanent law clerk in the chambers of the settlement magistrate judge. The clerk's office provides one deputy clerk, who serves as arbitration and mediation coordinator. The coordinator does all the necessary paper work to schedule the hearing, monitors the case through the hearing stage, and keeps the judge's staff informed about the status of the case. The ADR administrator identifies all cases eligible for mandatory or consensual arbitration and discusses the appropriateness of the process with counsel and the assigned judge. The ADR administrator also coordinates training for arbitrators in conjunction with the clerk's office and deals initially with problems, conferring with the assigned judge as appropriate.
Mediation In Oklahoma Western
Overview
Description and authorization.
The Western District of Oklahoma established a mediation program under its CJRA plan, effective December 31, 1991, and Local Rule 46. Under the program, which was implemented in April 1992, mandatory referral is permitted, but in practice mediation referrals are usually made only with the consent of all parties. Court-certified mediators are selected and compensated by the parties.
Mediation is used in this district as an early settlement device. At the initial pretrial scheduling conference, the assigned judge, ADR administrator, and counsel usually discuss whether mediation is appropriate for the case. If mediation is chosen or ordered, the initial session is generally held within thirty to sixty days of the conference. If litigants are interested in using mediation before the initial pretrial scheduling conference, they may seek assistance from the court's ADR administrator.
Number of cases.
Between January and September 1994, ninety-seven cases were referred to mediation.
Case selection
Eligibility of cases.
Any civil case, except administrative reviews and prisoner cases, is eligible for mediation. The process is most often used in personal injury disputes, contract disputes involving businesses, and employment discrimination disputes.
Referral method.
The customary practice of the court is to refer cases to mediation only with the consent of all parties. One district court judge occasionally orders mediation without party consent, as permitted by local rule. Referrals are made on a case-by-case basis after discussion among counsel and the assigned judge, often at the initial case management conference.
Opt-out or removal.
A case can be withdrawn from mediation by application to the assigned judge on the grounds that the case is not suitable for mediation. Joint applications for withdrawal are preferred.
Scheduling
Referral.
Cases are generally referred to mediation at the initial pretrial scheduling conference, but referrals can be made at any time. At the time of referral, the court enters orders referring the case, setting a mediation schedule, and appointing a mediator.
Written submissions.
At least two days before the mediation session, each party must submit to the mediator and all other parties a case summary of five pages or less. The summary is not made part of the case file.
Mediation session.
The judge's referral order sets a date by which mediation must be completed. The order's time limits are monitored by the mediation coordinator. Most mediation sessions occur within sixty days of the initial pretrial scheduling conference. The timing and location of the mediation session are arranged by the mediator and the parties. Sessions are generally held at the offices of the mediator or parties.
Number and length of sessions.
Mediation sessions generally last from a half day to a full day. One session is typically held per case, although additional sessions are held if necessary.
Program features
Discovery and motions.
All other case activities go forward during the mediation. Litigation activities are not suspended without a specific order of the court. The court promotes discovery plans directed toward early settlement discussions.
Party roles and sanctions.
In addition to counsel, parties with settlement authority are required to attend the mediation. Sanctions are authorized under local rule for unexcused failure to attend or to participate in the mediation session in good faith. Opposing counsel may bring instances of noncompliance to the court's attention by motion; if appropriate, the ADR administrator may advise the court of problems by memo.
Outcome.
The mediator files a report with the mediation coordinator and the assigned judge's courtroom deputy indicating whether the case settled. For computer deadline tracking, the mediation coordinator also prepares an order indicating that the mediation was held as scheduled.
Confidentiality.
The court's local rules protect the privacy of the mediation process and prohibit testimony by the mediator. No participant may disclose, without consent, any confidential information acquired during the mediation. No stenographic or electronic record is permitted. The mediator may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be required to disclose confidential information or data relating to or arising out of the matter in dispute.
The mediator is prohibited from communicating with the assigned judge except to inform the judge in the mediator's report whether the case settled.
Neutrals
Qualifications and training.
Mediators are appointed by the court for a five-year period. To be eligible to serve on the court's roster, candidates must be professional mediators or attorneys with at least five years of practice, admitted to practice in the district, and found competent to serve in these roles by the court.
All mediator candidates must complete at least twenty-four hours of classroom training in mediation, two observations of mediation sessions, and two actual mediation sessions. The mediation training, which is not offered by the court, must include simulated mediation exercises and address a variety of specific topics, such as mediation process, roles and responsibilities of the mediator and participants, confidentiality, ethics, and caucusing. In addition to the formal training, the court also holds periodic continuing educational sessions for the mediators on its roster.
Selection for case.
Within ten days of the referral order, the parties must select a neutral from the court's roster of mediators. If the parties cannot agree on a mediator, the mediation clerk makes the selection.
Disqualification.
Mediators are disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must disqualify themselves in any action in which they would be required to do so under 28 U.S.C. § 455 if they were a justice, judge, or magistrate judge. Any member of the bar who is certified and designated as a mediator pursuant to the court's rule is not for that reason disqualified from appearing or acting as counsel in any other case pending before the court.
Immunity.
Because arbitrators are appointed by the court to the roster and to the specific case, the court believes case law would support immunity protection.
Fees.
The mediator is compensated by the parties according the mediator's fee schedule, which is filed with the court. Mediator fees usually range between $250-$900 per mediation and are normally shared evenly by the parties. When the government is a party, Justice Department guidelines restrict the government's share of the mediator's fee to $250.
Program administration
The program is managed and administered by an ADR administrator, who holds a permanent law clerk position in the chambers of the settlement magistrate judge. The clerk's office provides one deputy clerk who serves as arbitration and mediation coordinator. The coordinator does all the necessary paper work to schedule the mediation, monitors the mediation deadlines, and keeps the judge's staff informed about the status of the case.
The ADR administrator identifies cases for the mediation program by reviewing joint status reports in which counsel have consented to mediation and by discussing the program with counsel at initial case management conferences. In conjunction with the training arm of the clerk's office, the ADR administrator plans the continuing education sessions for mediators. The ADR administrator initially handles all problems, conferring with judges as needed.
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