District of Rhode Island
IN BRIEF
Process summary
ADR program.
Under its CJRA plan, effective December 1, 1993, the District of Rhode Island has adopted an ADR program designed to reduce the number of civil trials in the district. The plan, which was implemented on February 8, 1995, requires all civil litigants to participate in some form of settlement program offered by the court. Parties are automatically referred to and must participate in a magistrate judge settlement conference, unless they elect to use one of the court's alternative processes-early neutral evaluation, mediation, arbitration, summary jury trials, or summary bench trials. The court's ADR administrator helps litigants select an ADR procedure suited to their case. Program procedures are described in the court's Alternative Dispute Resolution Plan.
At filing, counsel receive a brochure describing the court's ADR and settlement program. Counsel in each civil case are required to discuss settlement and select one of the court's ADR or settlement options. Within thirty days of the filing of an answer, counsel must certify to the court that they have conferred with one another regarding the case and the court's ADR options. If counsel elect to participate in one of the ADR options, they must also make this selection within thirty days of the answer's filing. If they do not select an ADR process within this time frame, they are required to participate in a mandatory magistrate judge settlement conference within 120 days of the answer's filing.
The court's ADR program includes the following processes:
Magistrate judge settlement conferences. Under the court's ADR and settlement program, all civil cases must participate in a settlement conference with a magistrate judge unless the parties elect to use one of the court's other ADR options. The use of magistrate judges as settlement judges is a long-standing practice in the court. Approximately eighty cases were referred to magistrate judge settlement conferences between January and September 1994.
Magistrate judges are randomly assigned to cases but may be reassigned if potential conflicts of interest preclude service in a particular case. Settlement conferences take place within 120 days of the answer's filing. Within 10 days of the session, counsel must submit to the magistrate judge position statements of ten pages or less, relevant pleadings and motions, and other pertinent material. Parties or insurers with full settlement authority are required to attend the session with counsel. At the settlement conference, the magistrate judge works with the parties and their counsel to identify issues, facilitate settlement discussions, and if possible, resolve the dispute. The settlement conference process is confidential.
Arbitration. Under the district's ADR program, parties in any civil case may agree to select nonbinding arbitration as an alternative to a mandatory settlement conference with a magistrate judge. See below.
Mediation. Under the district's ADR program, parties in any civil case may agree to select mediation as an alternative to a mandatory settlement conference with a magistrate judge. See below.
Early neutral evaluation (ENE). Under the district's ADR program, parties in any civil case may agree to select ENE as an alternative to a mandatory settlement conference with a magistrate judge. See below.
Summary jury trial (SJT). The summary jury trial is recommended by the court for use in trial-ready cases for which other settlement efforts have failed. Earlier use in some cases is suggested where appropriate. The court's ADR plan contains general procedures for the SJT, which may be amended by the assigned judge as needed. The process is sometimes referred to as a minitrial.
Summary bench trial. Under the court's summary bench trial process, a district judge or magistrate judge presides over a summary hearing by parties and issues an advisory decision. Where appropriate, the procedures specified for the summary jury trial may apply. A judge other than the assigned trial judge presides. The process is sometimes referred to as a minitrial.
Of note
Obligations of counsel.
In every civil case, counsel must meet to discuss the case and the possibility of settlement. Within thirty days of the filing of the answer, counsel must certify to the court that they have conferred in accordance with this requirement. Counsel must also be prepared to discuss the court's ADR requirements with the assigned judge at the initial Rule 16 conference.
Information from court.
An ADR brochure describing the court's ADR and settlement program is distributed to all counsel and pro se parties at filing. Before the initial Rule 16 conference, parties also receive a notice and order regarding the Rule 16 conference and the court's ADR requirements.
Evaluation.
The court plans to evaluate the ADR and settlement program quarterly.
For more information
Berry B. Mitchell, ADR Administrator, 401-528-5252
IN DEPTH
Arbitration in Rhode Island
Overview
Description and authorization.
Under the court's CJRA plan, effective December 1, 1993, the District of Rhode Island has authorized arbitration as one of the court's ADR options. The court's ADR and settlement program, which was implemented February 8, 1995, requires all civil cases to participate in a settlement conference with a magistrate judge unless the parties select one of the court's ADR options. Parties in any civil case may, if they agree, select nonbinding, court-based arbitration. Parties may also agree to use binding arbitration but must request a referral to a private ADR provider. In the court-based program, the hearing is before a single arbitrator who is not compensated for the first hour of service. Parties must equally share the subsequent fee of $150 per hour or less. Procedures for arbitration and the court's other ADR options are contained in the district's Alternative Dispute Resolution Plan.
Number of cases.
Caseload information is not yet available.
Case selection
Eligibility of cases.
All civil cases are eligible for arbitration. On a case-by-case basis, a case may be excluded from the district's ADR program by the assigned judge.
Referral method.
Every civil litigant is required to select one of the court's ADR options or, alternatively, appear before a magistrate judge for a settlement conference within 120 days of filing the answer or a motion to dismiss. To elect arbitration, parties execute a form order referring the case to ADR and indicating their proposed ADR method. Within ten days of the referral order, parties must arrange a joint meeting with the ADR administrator to discuss the court's ADR plan, the facts and issues of the case, the proposed ADR method, and potential neutrals.
Opt-out or removal.
A party may move to remove the case from arbitration. Once a case is removed, the parties may select another of the court's ADR options or notify the ADR administrator that settlement efforts have reached an impasse and request that the case be returned to the trial track.
Scheduling
Referral.
Parties receive information about the court's ADR requirements before the initial Rule 16 conference and may, by execution of a form order, select arbitration before, during, or after the conference.
Discovery and motions.
Deadlines for completing discovery and motions are established by the assigned judge. If a trial de novo is filed, no additional pretrial discovery may be taken without leave of court.
Written submissions.
At least five days before the arbitration hearing, each party must submit to the arbitrator a set of relevant pleadings and a memo of ten pages or less stating the legal and factual positions of the party, together with copies of the documentary exhibits the party intends to offer at the hearing. At least five days before the hearing, each party must deliver to each other party a copy of the memo and exhibits provided to the arbitrator and must make available any nondocumentary exhibits for evaluation by the other party.
Arbitration hearing.
The arbitration hearing must be held within thirty days of the date of the written notice of referral to arbitration and not more than 180 days from the date of filing the answer or a reply to a counterclaim. Hearing arrangements are made by the ADR administrator. The hearing may be held at any convenient location.
Length of hearing.
No information is currently available about the average duration of arbitration hearings.
Program features
Party roles and sanctions.
Parties must attend the arbitration session. When a party's interest is represented by an insurance company, an authorized representative of the insurance company with full settlement authority must attend. The absence of a party is not grounds for a continuance. Sanctions may be imposed by a district judge for failure to attend or comply with the process.
Filing of award.
Within ten days of the hearing, the arbitrator must file the award with the ADR administrator, who transmits it to the clerk for filing in the appropriate case file and who serves copies on the parties. Unless a party files a request for trial de novo, the arbitration decision becomes the judgment in the case. The decision is public unless ordered sealed by the court.
De novo request.
Parties seeking trial de novo must file a request within thirty days of the filing of the arbitration decision. The assigned judge may assess costs of the trial, as provided in 28 U.S.C. § 1920, against any party who demands trial de novo but fails to obtain a judgment, exclusive of interest and costs, that is substantially more favorable to the party than the arbitration award and who, in the judgment of the assigned judge, sought trial de novo in bad faith. This requirement does not apply to any case involving the United States or one of its agencies.
Confidentiality.
The content of any arbitration award is confidential and will not be made known to any judge unless (1) the assigned judge is asked to decide whether to assess costs; (2) the court has entered final judgment or the action has been otherwise terminated; or (3) the judge needs the information for the purpose of preparing the report required by § 903(b) of the Judicial Improvements and Access to Justice Act. The assigned judge will not admit at the trial de novo any evidence that there has been an arbitration hearing or the nature or amount of the award.
Neutrals
Qualifications and training.
Members of the court's panel of neutrals are nominated by the court's CJRA advisory group and confirmed by the judges for a three-year period; reappointment is approved if continued qualification is demonstrated. Persons appointed to the court's roster must be lawyers who have been admitted to the practice of law for at least ten years and who are currently members of the bar of the district. The panel may also include non-lawyers or lawyers with less than ten years of practice or who are not admitted in the district if they possess special or unique expertise in a particular field or have substantial experience or training in one of the dispute resolution options offered by the court and are certified by the court for inclusion on the panel. All persons appointed to the court's roster must undergo training as directed by the court.
Selection for case.
The parties select an arbitrator from a list of three names drawn from the court's roster of arbitrators. If the parties fail to make a selection within ten days, the ADR administrator randomly selects the arbitrator from the list submitted to the parties. In appropriate cases, the parties may request neutrals with subject matter expertise.
Disqualification.
If the arbitrator becomes aware of or if a party raises an issue about the arbitrator's neutrality because of some interest in the case or because of a relationship or affiliation with one of the parties or attorneys, the arbitrator must immediately disclose to the parties the relevant facts giving rise to the alleged conflict of interest. If a party requests the arbitrator to withdraw because of the disclosed facts, the arbitrator may withdraw, and the parties must select another arbitrator from a list provided by the ADR administrator. If the challenged arbitrator determines that withdrawal is unwarranted, the arbitrator may continue, subject to an appeal to the assigned judge, who may permit the arbitrator to continue or may remove the arbitrator.
Immunity.
The court believes that arbitrators have absolute immunity when performing duties within the scope of their official tasks.
Fees.
Arbitrators receive no compensation for the first hour of service. Thereafter, the parties are equally responsible for the arbitrator's compensation at a rate agreed to by the parties but not to exceed $150 per hour.
Program administration
The ADR administrator manages all the dispute resolution processes offered by the court under the ADR plan except the magistrate judge settlement conferences. The ADR administrator is part of the clerk's office but reports directly to the chief judge.
Mediation in Rhode Island
Overview
Description and authorization.
Under the court's CJRA plan, effective December 1, 1993, the District of Rhode Island established a mediation program as part of the court's ADR and settlement plan. The program was implemented February 8, 1995. As an alternative to a mandatory settlement conference with a magistrate judge, litigants in any civil case may agree to have their case referred to mediation with an attorney-mediator selected from the court's roster. In this confidential process, the mediator helps the parties identify underlying interests and reach a mutually acceptable resolution. Mediators are court-trained attorneys or other experts, selected by the parties and serving for no fee for the first hour of mediation. Thereafter, the parties compensate the mediator at a rate of not more than $150 an hour. Procedures for mediation and the court's other ADR options are contained in the district's Alternative Dispute Resolution Plan.
Number of cases.
Caseload information is not available.
Case selection
Eligibility of cases.
All civil cases are eligible for mediation, but a case may be excluded from mediation by the assigned district judge.
Referral method.
Every civil litigant is required to select one of the court's ADR options or, alternatively, appear before a magistrate judge for a settlement conference within 120 days of filing the answer or a motion to dismiss. To elect mediation, parties file a form order referring the case to ADR and indicating their proposed ADR method. Within ten days of the referral order, parties arrange a joint meeting with the ADR administrator to discuss the court's ADR plan, the facts and issues of the case, the proposed ADR method, and potential neutrals from the court's roster.
Opt-out or removal.
A party may move to remove the case from mediation. Once a case is removed, the parties may select another of the court's ADR options or notify the ADR administrator that settlement efforts have reached an impasse and request that the case be returned to the trial track.
Scheduling
Referral.
Parties receive information about the court's ADR requirements before the initial Rule 16 conference and may, by execution of a form order, select mediation before, during, or after the conference.
Written submissions.
At least five days before the mediation session, each party must submit a short confidential summary of the case to the mediator, describing the nature and history of the dispute, the applicable legal theory, and any settlement discussions. The party may identify individuals whose presence at the mediation would be helpful. The summaries are confidential and are not included in any court files or exchanged with opposing parties or the assigned judge.
Mediation session.
After receiving notice of his or her selection, the mediator schedules the mediation session and notifies the parties and ADR administrator of the session's time, place, and date. Unless otherwise ordered by the court, the mediation session must be held within thirty days of receipt by the mediator of the notice of his or her designation as mediator in the case.
Number and length of sessions.
This information is not available.
Program features
Discovery and motions.
All case activities go forward during the mediation process.
Party roles and sanctions.
In addition to counsel, all parties with full settlement authority must attend the mediation session. When a party's interest is represented by an insurance company, a representative of the insurance company with full settlement authority must attend. Sanctions may be imposed by a district judge for failure to attend or to comply with the mediation process.
Outcome.
At the conclusion of the mediation process, the mediator must report to the ADR administrator whether the case settled, and if it did not settle, whether other ADR processes might be appropriate.
Confidentiality.
Proceedings in all of the court's ADR programs are confidential. Rule 408 of the Federal Rules of Evidence applies to information, statements, and evidence generated in the course of any of the ADR process and makes inadmissible any evidence of conduct or statements made, unless these are otherwise discoverable. All memoranda and other work products, including files, reports, interviews, case summaries, and notes prepared by the neutral, are not subject to disclosure in any subsequent civil proceeding involving any of the parties, nor may the neutral be compelled to disclose in any subsequent civil proceeding any communication made to him or her in the course of, or relating to the subject matter of, any of the ADR sessions.
Disclosures to the mediator in private caucuses are treated confidentially unless the parties give permission to the mediator to reveal the disclosed information to the other party. No transcripts or recordings are made of the session. At the end of the mediation session, the mediator destroys any notes made during the session.
Neutrals
Qualifications and training.
Members of the court's panel of neutrals are nominated by the court's CJRA advisory group and confirmed by the judges for three-year terms; reappointment is approved if continued qualification is demonstrated. Panelists are lawyers who have been admitted to the practice of law for at least ten years and who are currently members of the bar of the district. The panel may also include other professionals, lawyers with less than ten years of practice, or lawyers not admitted to the district, if they possess special or unique expertise or training in one of the court's dispute resolution options. All people selected as neutrals must complete dispute resolution training prescribed by the court.
Selection for case.
The parties select a mediator from a list provided by the ADR administrator. If they are unable to agree on a mediator within ten days of receiving the list, the ADR administrator randomly selects a mediator from the list. The ADR administrator notifies all counsel and the mediator of the selection.
Disqualification.
If the mediator becomes aware of or if a party raises an issue about the mediator's neutrality, the mediator must immediately disclose to the parties the relevant facts giving rise to the alleged conflict of interest. If a party asks the mediator to withdraw, the mediator must withdraw and the parties must select another evaluator from the list provided by the ADR administrator.
Immunity.
The court believes that mediators have absolute immunity when performing duties that are within the scope of their official tasks.
Fees.
The mediator receives no compensation for the first hour of service. Thereafter the mediator is paid at a rate of $150 an hour or less, as agreed to and shared by the parties.
Program administration
The ADR administrator manages all the dispute resolution processes offered by the court under the ADR plan, except the magistrate judge settlement conferences. The ADR administrator is part of the clerk's office but reports directly to the chief judge.
Early Neutral Evaluation in Rhode Island
Overview
Description and authorization.
Under its CJRA plan, effective December 1, 1993, the District of Rhode Island has established an ENE program as part of the court's ADR and settlement plan. The program was implemented February 8, 1995. As an alternative to a mandatory settlement conference with a magistrate judge, litigants in any civil case may agree to have their case referred to early neutral evaluation with an attorney evaluator selected from the court's roster. Under the ENE program, parties meet with a neutral-evaluator within thirty days of their ADR election. The purpose of the session is to help parties and counsel focus the issues, organize discovery, prepare the case for trial, and, to the extent possible, discuss settlement of the case. The evaluator, who may meet in private caucuses with the parties if appropriate, provides an expert assessment of disputed legal and factual issues and an estimate of the perceived value of the case. Evaluators serve without compensation for the first hour. Thereafter, the parties share a fee of $150 per hour or less. Procedures for early neutral evaluation and the court's other ADR options are contained in the district's Alternative Dispute Resolution Plan.
Number of cases.
Caseload information is not yet available.
Case selection
Eligibility of cases.
The parties in any civil case may select early neutral evaluation. Individual cases may be exempted from the court's ADR program or from ENE by the assigned district judge.
Referral method.
Every civil litigant is required to select one of the court's ADR options or, alternatively, appear before a magistrate judge for a settlement conference within 120 days of filing the answer or a motion to dismiss. To elect ENE, parties must file a form order referring the case to ADR and indicating their proposed ADR method. Within ten days of the referral order, the parties must arrange a joint meeting with the ADR administrator to discuss the court's ADR plan, the facts and issues of the case, the proposed ADR method, and potential neutrals from the court's roster.
Opt-out or removal.
A party may move to remove the case from ENE. Once a case is removed, the parties may select another of the court's ADR options or notify the ADR administrator that settlement efforts have reached an impasse and request that the case be returned to the trial track.
Scheduling
Referral.
Parties receive information about the court's ADR requirements before the Rule 16(b) conference and may, by execution of a form order, select ENE before, during, or after the conference.
Written submissions.
No later than ten days before the evaluation session each party must submit to the evaluator and other parties a written evaluation statement, not to exceed ten pages, which must identify the people, in addition to counsel, who will attend the session as a representative of the party with decision-making authority; identify legal or factual issues whose early resolution might reduce the scope of the dispute or contribute to settlement; and describe the discovery that is contemplated. In addition to a written evaluation statement, the parties must prepare to respond fully and candidly in a private caucus to questions from the neutral concerning the estimated costs of litigation, witnesses, damages, and plans for discovery. The written evaluation statements are not filed with or revealed to the court.
ENE session.
Unless otherwise ordered by the court, the ENE session must be held within thirty days of the neutral's notice of appointment and should be held within seventy-five days of filing the answer. The neutral schedules the session at a time and place convenient to the participants.
Number and length of sessions.
This information is not yet available.
Program features
Discovery and motions.
Other case activities must go forward during the evaluation process.
Party roles and sanctions.
Each party must be represented at the session by the attorney expected to be primarily responsible for handling the trial of the case. Parties must attend the ENE session. When a party's interest is represented by an insurance company, an authorized representative of such party or insurance company with full settlement authority must attend. Willful failure of a party to attend the ENE conference must be reported to the assigned magistrate or district judge, who may impose appropriate sanctions.
Outcome.
The evaluator must report in writing to the ADR administrator that the ENE process has been completed, any agreements reached, and the neutral's recommendation, if any, as to any other ADR processes that might assist in resolving the dispute. Any subsequent ADR referrals must be coordinated with the supervising district or magistrate judge.
Confidentiality.
Proceedings in all of the court's ADR options are confidential. Rule 408 of the Federal Rules of Evidence applies to information, statements, and evidence generated in the course of any of the ADR processes and makes inadmissible any evidence of conduct or statements made, unless these are otherwise discoverable. All memoranda and other work products, including files, reports, interviews, case summaries, and notes prepared by the neutral are not subject to disclosure in any subsequent civil proceeding, nor may the neutral be compelled to disclose in any subsequent civil proceeding any communication made to him or her in the course of or relating to the subject matter of any of the ADR sessions.
Neutrals
Qualifications and training.
Members of the court's panel of neutrals are nominated by the court's CJRA advisory group and confirmed by the judges for a three-year period; reappointment is approved once continued qualification is demonstrated. Panelists are lawyers who have been admitted to the practice of law for at least ten years and who are currently members of the bar of the district. The panel may also include other professionals, lawyers with less than ten years of practice, or lawyers not admitted in the district, if they possess special or unique expertise or training in one of the court's dispute resolution programs. All neutrals must complete dispute resolution training prescribed by the court.
Selection for case.
After the parties have notified the ADR administrator of their selection of ENE, the administrator sends them a list of the court's neutrals. The parties must select a neutral within ten days of receipt of the list. If they fail to do so, the administrator randomly selects the neutral and notifies the parties and neutral of the selection.
Disqualification.
If the evaluator becomes aware of or if a party raises an issue about the evaluator's neutrality because of some interest in the case or because of a relationship or affiliation with one of the parties or attorneys, the evaluator must immediately disclose to the parties the relevant facts giving rise to the alleged conflict of interest. If a party requests the evaluator to withdraw because of the disclosed facts, the evaluator must withdraw, and the parties must select another evaluator from the list provided by the ADR administrator.
Immunity.
The court believes that neutrals have absolute immunity when performing duties within the scope of their official tasks.
Fees.
The evaluator receives no compensation for the first hour of service. Thereafter, the parties are equally responsible for compensating the evaluator, at a rate agreed to by the parties but not to exceed $150 per hour.
Program administration
The ADR administrator manages all the dispute resolution processes offered by the court under the ADR plan except the magistrate judge settlement conferences. The ADR administrator is part of the clerk's office administratively but reports directly to the chief 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