District of Utah
IN BRIEF
Process summary
Mediation.
The District of Utah established a court-based program for voluntary mediation under its CJRA plan, effective December 30, 1991, and Local Rule 212. The bankruptcy court in the District of Utah has also established a mediation program, which is administered in conjunction with the district court program. See below.
Arbitration.
As one of ten voluntary arbitration pilot courts under 28 U.S.C. §§ 651-658, the District of Utah established a court-based program for voluntary arbitration. See below.
Judicial settlement conferences.
Judicially hosted settlement conferences are authorized by Local Rule 204-2. The conferences are not mandatory and are not frequently used. Where appropriate, the assigned judge may ask another district judge or a magistrate judge to host a settlement conference.
Of note
Obligations of counsel.
When the case is filed, counsel for each party must discuss the court's ADR program with their clients and explore with them resolution of the dispute through litigation, arbitration, or mediation. Each attorney is then required to complete and file with the court a certificate signed by the attorney and the party to certify that they have discussed the court's ADR program and to indicate whether the case should be referred to ADR. The certificate must be filed with the clerk at least ten days before the initial scheduling conference. Counsel must also be prepared to discuss the case's suitability for ADR with the assigned judge.
Information from court.
The court provides litigants a booklet describing the court's ADR options. Parties may also make arrangements with the clerk's office to attend a brief ADR orientation session conducted by the ADR administrator.
Plans.
The court intends to modify Local Rule 212 to streamline the ADR process and make it more efficient. In addition, the court may make bankruptcy appeals eligible for mediation and arbitration.
Evaluation.
A Federal Judicial Center study of the court's voluntary arbitration program is reported in David Rauma & Carol Krafka,
Voluntary Arbitration in Eight Federal District Courts: An Evaluation
(Federal Judicial Center 1994). As one of the ten pilot districts established by the CJRA, the District of Utah is included in the RAND study of the pilot and comparison districts, which will be reported to Congress by the Judicial Conference in 1996.
For more information
Markus B. Zimmer, Clerk of Court, 801-524-5160; Laura Gray, ADR Administrator, 801-524-5211, ext. 3406
IN DEPTH
Mediation in Utah
Overview
Description and authorization.
Under its CJRA plan, effective December 30, 1991, the District of Utah offers mediation as one of its two ADR options. This experimental program was implemented in March 1993 under Local Rule 212. All civil cases, except those filed by prisoners or arising as a bankruptcy appeal, are eligible. Parties must file a notice of ADR preference before the initial scheduling conference. At the conference, the court's ADR options are discussed and the district or magistrate judge may, depending on the judge's assessment of the case and the parties' preferences, enter an order of referral to mediation. Within twenty days of the order, any party may freely opt out of the referral. Parties may also stipulate to mediation. The mediator, who may meet jointly or separately with the parties, serves as a facilitator only and does not decide issues or make findings of fact. The mediation process is confidential and is provided at no cost to parties.
Number of cases.
From January to September 1994, thirty-four cases were referred to mediation.
Case selection
Eligibility of cases.
All civil cases except pro se prisoner petitions and bankruptcy appeals may elect to use mediation. To date, mediation has been used by cases involving contracts, employment discrimination and other civil rights, trademark, copyright infringement, securities, and personal injuries.
Referral method.
Each party is required to file a certificate at least ten days before the initial scheduling conference indicating whether or not the party elects to refer the case to arbitration or mediation. At the initial scheduling conference, the district or magistrate judge discusses with the parties their ADR or litigation preferences. If neither party elects to participate in ADR, the assigned judge retains the authority to refer the case to arbitration or mediation if the judge believes, after conferring with the parties, that their interests would be better served by arbitration or mediation than by litigation. If the judge determines that mediation is suitable for the case, he or she enters an order of referral. Any civil action may also be referred to mediation after the initial scheduling conference on the court's own motion or by stipulation of the parties.
Opt-out or removal.
By written notice filed with the clerk and served on all parties not later than twenty days following entry of an order of referral, any party may opt out of the mediation referral. After the twenty-day period has expired, parties may opt out of the program only by leave of the court.
Scheduling
Referral.
Referral to mediation usually occurs at the initial scheduling conference but may take place at any appropriate time in the case.
Written submissions.
At least ten days before the scheduled mediation conference, each party must give the mediator a concise memorandum describing the party's position on the issues to be resolved through mediation. The mediator may direct the parties to exchange their memoranda.
Mediation session.
Within ten days of being selected, the mediator consults with the parties and sets a place and time for the mediation conference. The clerk then sends notice of the place, which is usually the courthouse, and time to all participating parties. The mediator determines the length and timing of the sessions and the order in which issues are presented.
Number and length of sessions.
Mediation sessions normally last about four hours. Only one session is usually required, but additional and longer sessions are held as needed.
Program features
Discovery and motions.
Unless otherwise agreed by the parties or ordered by the court, discovery is stayed once an order referring the case to mediation is entered. However, if the assigned judge has entered a pretrial scheduling order, the dates and restrictions in that order remain in effect.
Party roles and sanctions.
Parties are required to attend the mediation session. Those who fail to appear may be sanctioned by the court.
Outcome.
Immediately after the mediation conference is held, the mediator files a mediation conference report with the clerk indicating the results. If the mediation was unsuccessful, the parties may request continuation of the mediation within thirty days. If settlement is reached on all issues during a mediation conference, the parties must promptly prepare a written settlement agreement and file it with the clerk. If settlement is reached on some issues, the parties must file a stipulation as to those issues and identify the issues remaining in dispute.
Confidentiality.
Information disclosed to the mediator by a party during the mediation session may not be disclosed to the other party without consent. All mediation proceedings are confidential, and information presented therein is not admissible as evidence for any other proceeding. Mediation sessions may not be recorded without prior consent of the parties and the mediator.
Neutrals
Qualifications and training.
To be on the roster, an attorney must have ten years of practice experience, must be a member of the court's bar, and must complete the court's mediation training program. The court prefers applicants with prior mediation training.
Selection for case.
The court has established a roster of qualified mediators from which parties must select a mediator. If the parties cannot agree, the clerk will make the selection. The court may also appoint, for a particular case only, people not on the roster but selected by the parties for their special knowledge or expertise related to the subject matter of the dispute.
Disqualification.
The court has prepared a code of conduct for court-appointed mediators and arbitrators. It sets out lengthy ethical canons that neutrals must follow, including statements regarding the duty of neutrals to uphold the integrity and fairness of the ADR process, to avoid impropriety or the appearance of impropriety, to conduct the proceedings fairly and diligently, to avoid discriminatory mediating or arbitrating, and to secure the confidential nature of the ADR process. The code is set out in the court's Manual on Alternative Dispute Resolution for Court-Appointed Arbitrators and Mediators.
Immunity.
The court addresses questions of court-appointed arbitrator and mediator liability in its Manual on Alternative Dispute Resolution for Court-Appointed Arbitrators and Mediators. In part, the court concludes, "even given the fact that the full extent of mediator liability has not been explored by many courts, several factors exist to support absolute immunity for mediators acting in their official capacity."
Fees.
The court currently makes mediation available to litigants at no cost, and mediators serve without compensation. The court is seeking authorization from Congress to pay the mediators from the court's appropriations. The fee would be approximately $100 per case.
Program administration
The court's ADR program is administered by the clerk's office under the guidance of the district court judges. Issues that arise are handled by the clerk of court, the ADR administrator, and the chief judge.
Arbitration in Utah
Overview
Description and authorization.
The District of Utah is one of ten districts authorized by 28 U.S.C. §§ 651-658 to adopt a voluntary, nonbinding court-annexed arbitration program. The court's program is further authorized by the CJRA plan, effective December 30, 1991, and Local Rule 212. The program was implemented in August 1993. In cases that choose or are assigned by a judge to arbitration, one or three arbitrator(s) hear the case and make an award. Although the judge assigned to the case retains oversight authority and responsibility, the arbitration panel is empowered by the court to hear argument, review evidence, set discovery schedules, rule on motions where appropriate, and determine awards. Assignment of the case to arbitration occurs at the initial case scheduling conference and is determined in part by party preferences and in part by the judge's assessment of the needs of the case. Any party may freely opt out of the arbitration referral within twenty days of the referral order. The court's Advisory Committee on Local Rules is considering substantial changes to the arbitration procedures in Local Rule 212. Recommendations are expected in 1995.
Number of cases.
From January to September 1994, four cases were referred to arbitration.
Case selection
Eligibility of cases.
Almost all civil cases are eligible for arbitration. To date, it has been used in cases involving contracts, employment discrimination, and civil rights. Unless otherwise assigned by the judge, pro se prisoner petitions and bankruptcy appeals are excluded from arbitration.
Referral method.
Each party is required to file a certificate at least ten days before the initial scheduling conference indicating whether or not the party elects to refer the case to arbitration or mediation. At the initial scheduling conference the district or magistrate judge discusses with the parties their ADR or litigation preferences. If neither party elects to participate in ADR, the assigned judge retains the authority to refer the case to arbitration or mediation if the judge believes, after conferring with the parties, that their interests will be better served by arbitration or mediation than litigation. If the judge determines that arbitration is suitable for the case, the judge enters an order of referral. Any civil action may also be referred to arbitration after the initial scheduling conference on the court's own motion or by stipulation of the parties.
Opt-out or removal.
By written notice filed with the clerk and served on all parties not later than twenty days following entry of an order of referral, any party may opt out of participation in the ADR program. After the twenty-day period has expired, one or both parties may opt out of the ADR referral only with leave of court.
Scheduling
Referral.
Cases are generally referred to arbitration at the initial scheduling conference.
Discovery and motions.
Unless otherwise stipulated by the parties or ordered by the court, discovery is stayed once an order referring the case to arbitration is entered. A discovery schedule is then determined at an initial prehearing conference with the arbitrators, which is held within thirty days of selecting the arbitrators. The purpose of the conference is to review the case, to assist the parties in narrowing issues and determining the scope of discovery, and to schedule a hearing date.
Written submissions.
The arbitrator(s) may determine what submissions must be made and when they are to be made (e.g., exchange of witness lists, designation of experts, etc.). Not less than twenty days before the hearing, a party intending to offer documentary evidence may, at the party's discretion, serve copies on all participating parties. Not less than seven days before the hearing, parties may serve objections to the offered documentary evidence.
Arbitration hearing.
The arbitration hearing must be held within 120 days of the date of the prehearing conference. Arbitration hearings are held at the courthouse and are arranged by the ADR administrator.
Length of hearing.
Hearings usually last four to eight hours.
Program features
Party roles and sanctions.
Either the parties or their counsel must attend the arbitration prehearing conference. Parties should also attend the arbitration hearing. The assigned judge retains supervisory authority over cases in arbitration and may issue sanctions, if necessary, for noncompliance with the arbitration process.
Filing of award.
Within twenty days of the hearing, the panel must file with the clerk a notice of the award, which the clerk must mail to all parties. Unless the parties file a demand for trial de novo, the award becomes the judgment in the case once it is reviewed by the assigned judge and the judgment is entered.
De novo request.
A request for trial de novo must be filed within thirty days of filing the arbitration award.
Confidentiality.
No transcript, record, or award is admissible as evidence in a trial de novo or any subsequent proceeding unless the evidence is otherwise admissible or the parties stipulate.
Neutrals
Qualifications and training.
To be eligible for inclusion on the court's arbitration roster, applicants must have ten years of practice experience, must be members of the court's bar, and must complete the court's ADR training program. The court prefers applicants who have been trained in arbitration.
Selection for case.
Unless the parties indicate that they prefer one arbitrator, the court appoints three arbitrators from a roster of arbitrators maintained by the court. The court may also appoint, for a particular case only, people not on the roster but selected by the parties for their special knowledge or expertise related to the subject matter of the case.
Disqualification.
The district has developed a code of conduct for its mediators and arbitrators. It includes guidelines regarding the duty of neutrals to uphold the integrity and fairness of the ADR process, to avoid impropriety or the appearance of impropriety, to conduct proceedings fairly and diligently, to avoid discriminatory mediating or arbitrating, and to maintain the confidentiality of the ADR process. The code is set out in the court's Manual on Alternative Dispute Resolution for Court-Appointed Arbitrators and Mediators.
Immunity.
The court addresses questions of court-appointed arbitrator and mediator liability in its Manual on Alternative Dispute Resolution for Court-Appointed Arbitrators and Mediators. In part, the court concludes, "[T]he increasing number of cases recognizing arbitral immunity and the sound policy rationale for protecting arbitrators from suit when acting in their official capacity evidence a strong trend towards establishing arbitral immunity as the norm."
Fees.
Arbitrators receive $100 for the prehearing conference and $100 for each day of the arbitration hearing, paid by the court.
Program administration
The court's ADR program is administered by the clerk's office under the guidance of the district court judges. Issues that arise are handled by the clerk of court, the ADR administrator, and 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