[ADR] District of Vermont

District of Vermont

IN BRIEF

Process summary

Early neutral evaluation (ENE). Under its CJRA plan adopted on December 1, 1993, and Local Rule 12, the District of Vermont established a mandatory, settlement-oriented early neutral evaluation program for certain categories of cases. See below.

Judicial settlement conferences. The court schedules mandatory settlement conferences with judges in almost all civil cases. The settlement conferences take place shortly before trial.

Of note

Evaluation. The court plans to evaluate the effectiveness of the ENE program by giving exit questionnaires to ENE participants, their counsel, and the evaluators.

For more information

Richard Paul Wasko, Clerk of Court, 802-951-6301; Marjorie E. Krahn, Chief Deputy Clerk, Acting ADR Administrator, 802-951-6301

IN DEPTH

Early Neutral Evaluation in Vermont

Overview

Description and authorization. On November 1, 1994, the District of Vermont implemented a mandatory ENE program designed to encourage early settlement in certain categories of contract, tort, property, and statutory civil cases. Eligible cases are automatically designated for ENE at filing, and parties in other cases may use the program voluntarily. In most cases, ENE sessions are held midway through the standard eight-month discovery period. The sessions are conducted by court-trained neutrals with subject matter expertise who are selected and paid by the parties. All parties and counsel must attend.

The purpose of the ENE session is to provide an early opportunity for realistic settlement negotiations or, in the absence of settlement, to narrow issues and prepare for trial efficiently. Settlement is explored using private caucusing and mediation techniques. The neutral also estimates, where feasible, the likelihood of liability and the range of damages. The ENE program is authorized by the district's CJRA plan, effective July 1, 1994, and is governed by Local Rule 12, adopted July 1, 1994, and effective for all cases filed on or after that date.

Number of cases. During the period from November 1, 1994, to December 1, 1994, approximately sixty cases were referred to ENE.

Case selection

Eligibility of cases. Local Rule 12 enumerates the following categories of cases for automatic ENE referral: contract, real property, personal injury and personal property torts, civil rights, labor, property rights, and other statutes. In addition, parties in any other civil case can elect to use ENE if all the parties consent. Case categories not enumerated by Local Rule 12 are excluded from automatic referral to ENE.

Referral method. All eligible cases are automatically designated for referral to ENE at the time of filing. Other cases may use ENE voluntarily.

Opt-out or removal. An eligible case may be excused from participation in ENE by a court order based on a showing of good cause.

Scheduling

Referral. Cases are automatically designated for ENE when the complaint is filed.

Written submissions. At least ten days before the evaluation session, each party must submit to the evaluator and all parties a statement of ten pages or less that (1) identifies the disputed legal and factual issues, (2) indicates whether early resolution of any issues or additional discovery would assist the settlement process, and (3) identifies the attorney who will represent the party at the ENE session as well as the party with decision-making authority who will attend the session. Parties must attach to their statement any key documents out of which the case arose (e.g., a contract) and other materials that will assist the evaluator (e.g., medical reports).

ENE session. ENE sessions are held about midway through the eight-month discovery period. The date set for ENE is included in the discovery schedule issued by the assigned judge and can be delayed only by court order for good cause. The evaluation session is generally scheduled by the parties and the neutral and is held at the neutral's office.

Number and length of sessions. This information is not yet available.

Program features

Discovery and motions. All other case activities must go forward during the ENE referral.

Party roles and sanctions. In addition to counsel, the parties are required to attend the ENE session. Where a corporation or governmental entity is party to the litigation, a person other than outside counsel and who has the authority to settle and to enter stipulations on behalf of the party must attend. In cases involving insurance carriers, the insurer representative with full settlement authority must attend; attendance of the insured party is not required. Attendance in person may be excused only on a showing of "unreasonable hardship." The court's rule does not specify whether or what type of sanctions might be imposed for failure to comply with the attendance and other requirements.

Outcome. Within fifteen days of the close of the ENE session, the evaluator must submit a report to the parties and the court. The report includes the date and duration of the session; the names and addresses of attendees; the date the evaluator received the parties' evaluation statements; notations showing whether each party did or did not make an oral presentation of its position; and the results of the session, stating whether full or partial settlement was reached and describing any agreements to narrow the dispute, limit discovery, or facilitate future settlement. The evaluator's report does not disclose the evaluator's assessment of any aspect of the case or substantive matters discussed during the session, except to report agreements reached by the parties regarding further case activity or settlement.

Confidentiality. The program's confidentiality provisions invoke Fed. R. Evid. 408 and provide that all written and oral communications made in connection with or during the ENE process are confidential. In addition, no contact between the evaluator and the assigned judge is permitted. Excluded from the confidentiality shield are any stipulations or agreements that narrow the scope of the dispute, facilitate future settlement, or otherwise reduce cost and delay, as well as inquiries and information for court monitoring and evaluation of the program.

Neutrals

Qualifications and training. Candidates for the court's roster of evaluators must be either (1) an attorney, in practice for at least five years, who has significant trial experience and substantive experience that will serve the objectives of the ENE program; (2) a non-attorney; or (3) an attorney admitted to practice for less than five years who has expertise in a substantive or legal area that will serve the objectives of the ENE program. ENE candidates must participate in a mandatory, two-day training session sponsored by the court and conducted by ADR professionals.

Selection for case. The parties select an evaluator from a list of court-trained neutrals with subject matter expertise. If the parties cannot agree on a neutral, a striking system is used. The selection process occurs shortly after answer is filed.

Disqualification. A neutral-evaluator may not serve in any case in which any of the circumstances specified in 28 U.S.C. § 455 exist, unless there is a waiver by all parties. Evaluators are required to promptly disclose disqualifying circumstances to the ENE administrator. A party who believes that a potential or assigned evaluator has a conflict of interest must alert the ENE administrator within five days of learning about the possible conflict or be deemed to have waived the objection.

Immunity. The court believes that evaluators acting within the scope of their official duties are protected by quasi-judicial immunity.

Fees. The evaluator is compensated by the parties at a rate of $500 per case, with the cost shared equally by the parties. In addition, Local Rule 12.5.b provides: "This fee assumes an ENE session of approximately half a day, related preparation and submission of an evaluator's report. If significantly more time is required for the ENE session, an additional session(s) is required or the parties request the evaluator to prepare a formal evaluation, the parties and the evaluator shall agree upon any additional compensation."

Program administration

The District of Vermont's ENE program is administered through the clerk's office by an ADR administrator, who is currently the chief deputy clerk. A full-time magistrate judge supervises the program. The district's CJRA subcommittee on alternative dispute resolution also provides oversight and policy guidance.

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