District of the Virgin Islands


IN BRIEF

Process summary

Mediation. Under its CJRA plan, adopted December 31, 1991, and Local Rule 3.2, the District of the Virgin Islands has authorized a mediation program. See below.

Judicial settlement conferences. The court encourages settlement discussions at all conferences in civil cases. The assigned district judge and magistrate judges will hold settlement conferences. Participation by the parties is voluntary.

Of note

Plans. The court is considering amending Local Rule 32(e)(2) to provide sanctions for failure of a party to participate in good faith in the mediation process.

For more information

Jeffrey L. Resnick, U.S. Magistrate Judge, St. Croix Division, 809-773-1601; Geoffrey W. Barnard, U.S. Magistrate Judge, St. Thomas Division, 809-773-5480


IN DEPTH

Mediation in the Virgin Islands

Overview

Description and authorization. The CJRA plan, adopted December 31, 1991, and Local Rule 3.2 authorize a mandatory mediation program. Any civil case may be ordered to mediation by a magistrate judge or the assigned judge. Cases may be referred at the scheduling conference or at any other appropriate time. Mediators are compensated by the parties.

Number of cases. During 1994, seventy-two cases were ordered to mandatory mediation. In addition, fourteen cases were referred to mediation based on party consent.

Case selection

Eligibility of cases. Any civil case is eligible for referral to mediation except appeals from administrative agency rulings, forfeitures, habeas corpus cases, any case assigned by the court to a multidistrict tribunal, cases involving declaratory relief, any litigation expedited by statute or law, and any other matter specified by order of a judge.

Referral method. The assigned judge may compel use of mediation, and parties may also stipulate to mediation.

Opt-out or removal. Within fifteen days of the order of referral, a party may move to dispense with mediation if the issue has already been mediated, the case presents a question of law only, or for other good cause.

Scheduling

Referral. A case may be ordered to mediation at the initial scheduling conference or at any other appropriate time.

Written submissions. Requiring or allowing written submissions by the parties is left to the discretion of the mediator.

Mediation session. The first mediation conference must be held within sixty days of the referral, and the mediation process must be completed within forty-five days of the first mediation conference. The time period for mediation can be extended by the court or by stipulation by the parties, but it must not exceed ninety days.

Within ten days of the referral order, the court or the mediator notifies the parties in writing of the date, time, and place of the mediation conference. The conference takes place in a courtroom or at any other location designated by the referring judge.

Number and length of sessions. Generally, only one mediation session is held, lasting about three to six hours.

Program features

Discovery and motions. Discovery may continue throughout mediation but may also be delayed or deferred if the parties agree or the court orders.

Party roles and sanctions. Parties or their representatives with full settlement authority must attend the mediation conference. Failure to attend may result in sanctions, including mediator and attorney's fees and other costs. If a party to mediation is a public entity, a representative with full authority to negotiate and to recommend settlement to the appropriate decision makers must attend. Insurer representatives must have full and immediate authority to settle.

Counsel's role. By local rule, the mediator controls the extent of counsel's participation in the mediation session.

Outcome. If there is no agreement, the mediator must notify the court without comment or recommendation that settlement has not occurred. With the parties' consent, the mediator may advise the judge of pending motions, outstanding legal issues, or any other actions that might facilitate settlement. If settlement is reached, a written settlement or a joint stipulation of dismissal must be filed.

Confidentiality. Each party to the court-ordered mediation conference may refuse to disclose and to prevent any person present at the proceeding from disclosing communications made during such proceeding. Unless all parties agree, all communications made during the mediation process are inadmissible as evidence in subsequent proceedings.

Neutrals

Qualifications and training. Mediators certified for the court's list of mediators must be members in good standing of the Virgin Island Bar with at least five years experience; a retired judge who was a member of the bar in the state or territory in which the judge presided; or a person certified as a mediator by the American Arbitration Association or other national organization approved by the court. In addition, the mediator may hold a master's degree and be a member in good standing in his or her professional field with at least five years' experience in the Virgin Islands. Mediators must take the oath prescribed by 28 U.S.C. § 453.

Mediators must complete twenty hours of training and observe a minimum of four mediation conferences before being placed on the court's roster.

Selection for case. Within ten days of the referral order, the parties may accept the mediator selected by the court from its roster, or they may select, subject to review by the court, another qualified mediator. The court appoints mediators from the court roster by rotation or other procedure.

Disqualification. Mediators must disqualify themselves for bias, prejudice, or impartiality as provided for by 28 U.S.C. § 144 and shall disqualify themselves in any action in which they would be required under 28 U.S.C. § 455 to disqualify themselves if they were a justice, judge, or magistrate judge. Mediators have a duty to disclose any fact that may be grounds for disqualification. Any party may move the court to disqualify the mediator for good cause. Mediators may disqualify themselves or refuse assignment.

Immunity. Local Rule 3.2(c)(3) provides that "[a] mediator appointed by the court . . . shall have judicial immunity in the same manner and to the same extent as a judge."

Fees. In the absence of a written agreement providing for the mediator's compensation, the mediator is compensated at the hourly rate set by the presiding judge in the referral order. Each party pays one half, unless the court determines that one party has not mediated in good faith.

Program administration

The magistrate judges make most of the referrals in their role as case managers and schedulers under Fed. R. Civ. P. 16 and Local Rule 16.1 and 16.2. Problems encountered in mediation or motions to enforce mediation are handled by the district judge to whom the case is assigned.


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