Western District of Texas
IN BRIEF
Process summary
Arbitration.
The Western District of Texas is one of ten courts authorized to provide mandatory, nonbinding court-annexed arbitration under 28 U.S.C. §§ 651-658 and Local Rule CV-87. See below.
Mediation.
Local Rule CV-88, adopted January 1, 1993, authorizes use of several methods of ADR, including mediation. See below.
Other ADR.
Local Rule CV-88 also allows for other types of ADR, including nonbinding arbitration for cases not subject to Local Rule CV-87, early neutral evaluation, minitrial, and moderated settlement conference. The court has no specific procedures for these ADR methods, and their use to date has been limited.
Judicial settlement conferences.
District and magistrate judges conduct settlement conferences at the request of the parties.
Of note
Obligations of counsel.
Attorneys must discuss ADR options with their clients and with the court. Additionally, attorneys must address in the case management statement or plan the suitability of ADR for the case and must certify that they have informed their clients of the different ADR procedures available in the district.
Evaluation.
An evaluation of the district's arbitration program is reported in Barbara Meierhoefer,
Court-Annexed Arbitration in Ten District Courts
(Federal Judicial Center 1990).
For more information
Edward C. Prado, U.S. District Judge, 210-229-4060; Nancy Stein Nowak, U.S. Magistrate Judge, 210-229-6584
IN DEPTH
Arbitration in Texas Western
Overview
Description and authorization.
The Western District of Texas is one of ten courts authorized by 28 U.S.C. §§ 651-658 to establish mandatory, nonbinding court-annexed arbitration. The program was established January 1, 1985, in the San Antonio and Austin divisions. Under Local Rule CV-87, cases involving monetary damages only of no more than $150,000, exclusive of interest, costs, and attorney's fees, are automatically referred to arbitration when the answer is filed. Other cases may also be referred at the request of the parties. Three arbitrators hear presentations by the parties and issue an arbitration award. The arbitrators' fees are paid by the court.
Number of cases.
Between January and September 1994, twenty-two cases were referred to arbitration.
Case selection
Eligibility of cases.
Eligible cases are those seeking money damages only of no more than $150,000. Cases involving a request for injunctive relief are not referred to arbitration.
Referral method.
All eligible cases are automatically referred. Court staff select the appropriate cases after reviewing the complaint and then notify the parties of the arbitration referral. Other cases may be referred at the request of the parties.
Opt-out or removal.
At any time before the expiration of the twenty-day period following the filing of the last responsive pleading, the court, sua sponte or on motion by any party, may grant relief for good cause. Additionally, the assigned judge may exempt an action if the judge finds the existence of complex or novel questions of law or a predominance of legal issues over factual issues.
Scheduling
Referral.
Referrals are made shortly after the answer is filed.
Discovery and motions.
When filed no later than the answer, a motion to dismiss, a motion for judgment on the pleadings, a motion to join necessary parties, or a motion for summary judgment stays the arbitration process, unless the parties consent to proceed. The assigned judge retains authority to conduct status and settlement conferences, hear motions, and supervise the case in all other respects notwithstanding the referral to arbitration. Deadlines established in the scheduling order do not relieve the parties of compliance with the arbitration proceedings.
Written submissions.
No submissions are required, but before the arbitration hearing the arbitrators may review the court's file.
Arbitration hearing.
The arbitration hearing must begin no later than sixty days after filing of an answer. The arbitrators are authorized to change the date and time of the hearing provided it begins within thirty days of the hearing date set by the clerk. Any continuance beyond the thirty-day period must be approved by the assigned judge. The clerk must be notified immediately of any continuance. The arbitration process must be completed no later than sixty days after the answer is filed.
No later than twenty-four hours before the hearing, the parties must advise the arbitrators in writing if they have reached a settlement. Failure to do so may result in sanctions, including but not limited to the expenses of unnecessarily impaneling the arbitration panel.
Clerk's office staff arrange the arbitration hearings, which are generally held in the courtroom or any other room in any federal courthouse or office building made available to the arbitrators by the clerk's office.
Length of hearing.
An arbitration session lasts less than half a day.
Program features
Party roles and sanctions.
The arbitrators may order the parties to attend, but the hearing may proceed in the absence of any party who, after notice, fails to be present. If a party fails to participate in the arbitration process in a meaningful manner or fails to appear at the date and time of the scheduled arbitration hearing, the arbitrators may impose sanctions against the party or the attorney.
Filing of award.
The arbitration award is filed under seal with the clerk of court not more than ten days following the close of the hearing. If no timely request for trial de novo is made, the clerk enters the award as the judgment of the court.
De novo request.
A party may file and serve a written demand for trial de novo within thirty days of the filing of the award. The moving party must deposit with the clerk an amount equal to the total arbitration fees for each arbitrator. The sum deposited is returned to the moving party in the event he or she obtains a final judgment, exclusive of interests and costs, more favorable than the arbitration award. If the moving party does not obtain a more favorable result, the deposited sum is paid to the U.S. Treasury.
Confidentiality.
There may be no ex parte communication between an arbitrator and any counsel or party on any matter relating to the action except for purposes of scheduling or continuing the hearing. A neutral may communicate with an assigned judge if sanctions appear to be warranted. No evidence of or concerning the arbitration may be received into evidence at trial.
Neutrals
Qualifications and training.
The court maintains a list of certified arbitrators. To qualify for the roster, an applicant must (1) have been a member of the bar of the highest court of any state or the District of Columbia for at least five years; and (2) either be admitted in the district or be a member of the faculty of an accredited law school in Texas; and (3) be determined by the court to be competent to perform the duties of an arbitrator. Arbitrators are not required to go through any training.
Selection for case.
The clerk provides the parties a list of five arbitrators selected from the court's roster. The parties then select three arbitrators by each striking one from the list. After a person has served as an arbitrator in an action, he or she may not serve again for at least four months.
Disqualification.
No person may serve as an arbitrator in an action in which any of the circumstances specified in 28 U.S.C. § 455 or the Code of Judicial Conduct exist or may in good faith be believed to exist.
Immunity.
The court has not addressed this issue.
Fees.
The fee is $75 per day per arbitrator, paid by the court.
Program administration
The arbitration program is handled by the clerk's office. A district judge serves as liaison judge.
Mediation in Texas Western
Overview
Description and authorization.
Under Local Rule CV-88, the Western District of Texas established broad authorization to use ADR procedures, including mediation. Under the court's program, which was adopted December 1, 1993, any civil case may be referred to mediation by the court on its own motion or on motion of any party. Referral is made at any time that seems appropriate for the case. A single attorney-mediator meets with the parties to try to reach settlement and may conduct additional meetings if necessary. The mediator offers no evaluation of the case. The parties pay the fee set by the neutral and may appeal to the court if they think the fee charged is unreasonable. Several magistrate judges have received training in mediation and are available for use in cases involving indigent parties.
Number of cases.
The number of cases referred to mediation varies from judge to judge. Although court-wide referral records are not kept, the court believes a significant number of cases were referred to mediation from January to September 1994.
Case selection
Eligibility of cases.
All civil cases are eligible for referral to mediation. No cases are presumed inappropriate or ineligible.
Referral method.
In response to a court order entered early in the case, the parties must submit a report on case management issues and ADR. If the parties agree to use ADR, the report must include the method agreed on, the name of the neutral if the parties have agreed to one, and how the neutral will be compensated. The court on its own motion and without party consent may also order the parties to participate in nonbinding mediation.
Opt-out or removal.
If a party shows good cause, it can obtain relief from an order compelling participation in mediation. Good cause may include a showing that the expenses relating to alternative dispute resolution would cause undue hardship to the party. The court may in its discretion appoint a neutral, including a qualified magistrate judge, to provide ADR services at no cost.
Scheduling
Referral.
The referral may occur at any time appropriate for the case.
Written submissions.
Other than the parties' report identifying the type of ADR selected, there are no specific requirements for written submissions before the mediation session.
Mediation session.
The mediation proceeding begins at a date and time selected by the mediator but not later than forty-five days after entry of the order of referral to mediation or appointment of a mediator, whichever is later. Mediation sessions are arranged by the neutral, and sessions are held at the neutral's office.
Number and length of sessions.
Mediation sessions generally last several hours to a full day.
Program features
Discovery and motions.
Referral to mediation does not stay the deadlines otherwise established by the court.
Party roles and sanctions.
Party representatives with settlement authority and all other people necessary to negotiate a settlement must attend the mediation. The sanctions available under Fed. R. Civ. P. 16(f) apply to any violations.
Outcome.
At the conclusion of each ADR proceeding, the neutral submits to the court a notice indicating whether the mediation process resulted in settlement.
Confidentiality.
Any communication relating to the subject matter of the dispute is confidential, as is any record made at a mediation. The participants and the neutral may not be required to testify in any proceeding relating to or arising out of the matter in dispute and may not be subject to any process requiring disclosure of related confidential information or data.
Neutrals
Qualifications and training.
The court appoints a three-member panel in each division to review applications and prepare an annual roster of qualified neutrals. Minimum qualifications for application include: (1) membership in the bar of this district or on the faculty of an accredited law school in Texas; and (2) membership in the bar of the highest court of any state or the District of Columbia for at least five years; and (3) completion of at least forty hours of training in dispute resolution techniques in a course approved by the State Bar of Texas Minimum Continuing Legal Education Department; and (4) agreement, if called on by the court, to accept mediation referrals on a pro bono basis.
Selection for case.
If, after deciding to use mediation, the parties do not select a neutral on their own initiative, the court provides a list of neutrals qualified by the court and maintained by the clerk. The parties must then confer to see if they can agree on a neutral from the roster or someone else. If they cannot, the court makes the selection.
Disqualification.
No person is allowed to serve as mediator if any of the circumstances specified in 28 U.S.C. § 455 or the Judicial Code of Conduct exist or if the neutral believes in good faith that such circumstances may exist.
Immunity.
The court has not addressed this issue.
Fees.
The parties pay the fee set by the neutral and may appeal to the court if they think the fee is unreasonable. If a party seeks relief from referral to mediation on grounds that it cannot afford the fee, the judge may appoint a neutral to serve pro bono.
Program administration
The program is handled by the clerk's office. A district judge serves as liaison 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