Southern District of Texas
IN BRIEF
Process summary
Mediation.
The Southern District of Texas established a mediation program under the district's CJRA plan and Local Rule 20, both effective January 1, 1992 (in February 1994, Local Rule 20 was renumbered Local Rule 22). See below.
Neutral evaluation (arbitration).
Local Rule 20 and the district's CJRA plan also authorize referrals to a hybrid neutral evaluation process, called arbitration by the court. See below.
Other ADR.
On occasion, judges appoint special masters to settle cases or conduct summary jury or summary bench trials.
Judicial settlement conferences.
Some judges hold settlement conferences on a case-by-case basis.
Of note
Obligations of counsel.
Attorneys must discuss ADR with their clients and with opposing counsel and must demonstrate in their case management statement that they have done so. They must also discuss in the case management statement whether ADR is suitable for the case and must be prepared to discuss this topic with the judge.
Evaluation.
The court conducts an annual evaluation of its ADR programs. As one of the ten pilot courts established by the CJRA, the court 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
Robbie Westmoreland, Administrative Analyst, 713-250-5436
IN DEPTH
Mediation in Texas Southern
Overview
Description and authorization.
Through Local Rule 20 and the CJRA plan, both effective January 1, 1992, the Southern District of Texas authorized a mediation program (Local Rule 20 was renumbered to Local Rule 22 in February 1994). Any civil case may be referred to mediation by a judge or party at any time appropriate for the case. A single mediator meets with parties to try to reach settlement or, failing that, to help narrow issues. Direct discussions between parties may be encouraged, or shuttle diplomacy may be used. Some mediators offer evaluations of the case, but no dispositive decisions are given. Sessions lasting for more than one day occasionally occur, and the entire process is confidential. The mediator's fee is paid by the parties.
Number of cases.
Between January and September 1994, 263 cases were referred to mediation.
Case selection
Eligibility of cases.
All civil cases are eligible for referral to mediation. The most common referrals are contract, tort, civil rights, and labor cases. The only cases routinely not referred to mediation are those involving the United States or prisoners as parties.
Referral method.
Before the initial scheduling conference in the case, counsel must discuss the appropriateness of ADR with their clients and opposing counsel. At the first conference, the parties must advise the court of the results of their discussion. At that time, and in subsequent conferences if necessary, the court will explore with the parties the possibility of using one of the court's ADR programs. If appropriate, the assigned judge may refer a case to mediation without party consent, or referral may be made at the request of one party. All parties to the case, including the mediator, are notified by mail once an order referring the case is entered.
Opt-out or removal.
If the parties agree on an ADR method, the judge will respect their choice unless the judge believes another ADR method would be better. A party opposing the referral to mediation must file written objections with the judge within ten days of receiving a notice of referral.
Scheduling
Referral.
Referral to mediation may be made at the initial scheduling conference, after discovery has been completed, or at any time that seems appropriate.
Written submissions.
There are no standard requirements regarding materials to be submitted before the mediation session. The mediator may request submission of specified materials when he or she arranges mediation with the parties.
Mediation session.
There are no deadlines or timelines for completing the mediation session. The session is held either at the courthouse or at the neutral's office. The neutral, the parties, and court staff jointly make the arrangements for the mediation session.
Number and length of sessions.
Questionnaires indicate that the average mediation proceeding lasts between seven and eight hours, although complex cases (as indicated by the presence of multiple parties) tend to require more time. Most mediation proceedings require only one session, concluded within a single day.
Program features
Discovery and motions.
Other case activities go forward during the mediation process unless the judge specifically orders otherwise. Some judges routinely suspend scheduling deadlines for ADR, while other judges prefer to leave scheduling deadlines in place.
Party roles and sanctions.
Attendance at the mediation session is required for party representatives with authority to settle and all other people necessary to negotiate a settlement, including insurance carriers. The sanctions available under Fed. R. Civ. P. 16(f) apply to any violations of the mediation rule.
Outcome.
The mediator must file a memorandum with the clerk of court noting whether settlement occurred and describing the type of case involved, the amount of fees charged, and the names and addresses of participants in the proceeding.
Confidentiality.
All communications made during mediation are confidential, are protected from disclosure, and do not constitute a waiver of any existing privileges and immunities.
Neutrals
Qualifications and training.
The court maintains a panel of ADR neutrals. Applicants for the panel are reviewed by a three-member committee made up of a district judge, a professional mediator, and a member of the Southern District of Texas Advisory Group. To be eligible for the panel, providers must (1) be a member in the bar of this court; (2) be licensed to practice law for at least ten years; and (3) have completed at least forty hours of training in dispute resolution techniques in an ADR course approved by the State Bar of Texas Continuing Legal Education Department. Those on the panel are appointed for five years and must complete at least five hours of ADR-related training each year.
Selection for case.
If the parties agree on a mediator, the assigned judge will respect the choice unless the judge believes another mediator would serve the needs of the case better. If the court selects the mediator and the parties object, they must do so in writing within ten days of receiving notice of the selection. Selections are made from the court's panel of neutrals. On occasion, judges and parties select a neutral who has expertise in the subject matter of the case, although this is not a requirement for the process.
Disqualification.
The disqualification standards for mediators are those spelled out in 28 U.S.C. § 455.
Immunity.
The court believes that neutrals have immunity protections under existing law.
Fees.
The parties pay the fee normally charged by the mediator, unless the mediator is ordered by the court to proceed for no fee. The court reserves the right to review the reasonableness of the fee.
Program administration
Clerk's office personnel maintain the list of approved mediators, collect information from parties, and perform the annual assessment of the program required by Local Rule 22. A judge serves as liaison with the clerk's office for ADR matters.
Neutral Evaluation (Arbitration) in Texas Southern
Overview
Description and authorization.
Under its CJRA plan and Local Rule 20, both effective January 1, 1992, the Southern District of Texas established a nonbinding ADR process for settlement and issue narrowing (in February 1994, Local Rule 20 was renumbered to Local Rule 22). Called arbitration by the court, the hybrid process combines elements of neutral evaluation, mediation, and arbitration and is similar in most respects to the neutral evaluation process used in some other districts. Almost all civil cases are eligible for referral on the motion of one party, by agreement of all parties, or on the court's own motion. A single neutral, called an arbitrator, meets with the parties to try to reach a settlement and, failing that, to narrow issues. The neutral will offer an evaluation of the case but will not give a dispositive decision unless the parties voluntarily agree to accept it as the binding decision in the case. The neutral is paid by the parties at market rates.
Number of cases.
Between January and September 1994, one case was referred to neutral evaluation.
Case selection
Eligibility of cases.
Almost all civil cases are eligible for this process. The only cases routinely not referred are those involving the United States or prisoners as a party.
Referral method.
The judge may refer a case to this process on the motion of one party, agreement of all parties, or on the court's own motion. All parties, including the neutral, are notified by mail once the referral order is entered.
Opt-out or removal.
Any party opposing either the referral or the appointed neutral must file written objections within ten days of receiving notice of the referral or provider, explaining the reasons for the opposition.
Scheduling
Referral.
Referral may be made at the initial scheduling conference, after discovery has been completed, or at any time that seems appropriate.
Discovery and motions.
Other activities go forward during the ADR process unless specifically ordered otherwise. Some judges routinely suspend deadlines for ADR, while other judges prefer to leave scheduling deadlines in place.
Written submissions.
Only those submissions requested by the neutral or required by order of the court in a particular case must be made before the ADR session.
ADR session.
The ADR session may be held at the courthouse or at the neutral's office. Arrangements are made by court staff, the neutral, and the parties. Local Rule 22 does not specify a time frame within which the ADR session must take place, but the court may impose such a time frame by order.
Length of session.
This information is not yet available.
Program features
Party roles and sanctions.
Party representatives and all other people necessary to negotiate a settlement, including insurance carriers, must attend the ADR session. The sanctions available under Fed. R. Civ. P. 16(f) apply to any violation of the court's ADR procedures.
Filing of outcome.
The neutral must file a memorandum with the clerk of court describing the results of the process, the type of case, the amount of fees charged, and the names and addresses of participants in the proceeding. The ADR memorandum to the clerk is a public document and is filed in the case file.
De novo request.
There is no provision for requesting trial de novo because the goal of the process is settlement or issue narrowing, and a decision is not rendered unless the parties have agreed that the decision will be binding.
Confidentiality.
All communications made during ADR proceedings are confidential, are protected from disclosure, and do not constitute a waiver of any existing privileges and immunities.
Neutrals
Qualifications and training.
The court maintains a panel of ADR providers. Applicants for the panel are reviewed by a three-member committee consisting of a district judge, a professional mediator, and a member of the Southern District of Texas Advisory Group. To be eligible for appointment to the panel, ADR neutrals must (1) be a member of the bar of this court; (2) be licensed to practice law for at least ten years; and (3) complete at least forty hours of training in dispute resolution techniques in an ADR course approved by the State Bar of Texas Continuing Legal Education Department. Members of the roster must participate in at least five hours of ADR training each year and are appointed for five years.
Selection for case.
This court assigns each case one attorney-neutral, selected by either the court or the parties from the court's roster or elsewhere. Judges and parties sometimes base their selection on the neutral's expertise in the subject matter of the case.
Disqualification.
Neutrals are subject to disqualification in accord with 28 U.S.C. § 455 and the requirements of Local Rule 22.
Immunity.
The court believes that neutrals have immunity protections under existing law.
Fees.
The parties pay the neutral's market rate fees, unless the court orders the neutral to proceed pro bono.
Program administration
Clerk's office personnel maintain the list of approved neutrals, collect information from parties, and perform the annual assessment of the program required by Local Rule 22.A judge serves as liaison with the clerk's office for ADR matters.
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