Eastern District of Washington
IN BRIEF
Process summary
Mediation.
Under Local Rule 39.1, the Eastern District of Washington has established a mediation process, which may be followed by either a hearing with a special master or an arbitrator. See below.
Arbitration.
Local Rule 39.1 also authorizes the use of nonbinding, voluntary arbitration. Referral to arbitration usually occurs in cases that have participated in the court's mediation program but have failed to settle. See below.
Judicial settlement conferences.
In cases in which discovery has been completed, individual judges conduct settlement conferences if requested by the parties. The judge may request a confidential memorandum from each party setting out the strengths and weaknesses of the case and the status of settlement negotiations. There is no written requirement that parties attend the settlement conference, but they are generally ordered to by the court. In cases subject to a bench trial, the trial judge does not conduct the settlement conference, but the trial judge may choose to do so for cases that will be tried to a jury. Magistrate judges may also conduct the settlement conferences.
Of note
Plans.
The CJRA advisory group has recommended discussion of ADR at the initial scheduling conference and compensation by the court of attorney-mediators serving pursuant to Local Rule 39.1.
For more information
Wm. Fremming Nielsen, Chief U.S. District Judge, 509-353-2180; James R. Larsen, Clerk of Court, 509-353-2150
IN DEPTH
Mediation in Washington Eastern
Overview
Description and authorization.
In 1988, the Eastern District of Washington established an ADR process. Authorized by Local Rule 39.1, the process begins with a referral to mediation, which may occur in any civil case and may be ordered by the judge on his or her own motion or at the request of one or more parties. Within thirty days after a case is designated for mediation, the attorneys must meet in premediation sessions to discuss settlement among themselves. Within ten days after the premediation session, the parties must select a mediator from the court's roster of neutrals, or, if they cannot agree, the court selects a mediator from the roster. The mediator determines whether the parties must attend the mediation conference, which is confidential. If the mediation conference does not produce a settlement, the parties may agree to participate in a hearing with a special master or arbitrator.
Number of cases.
In its 1993 report to the court, the CJRA advisory group reported that 12% of the court's cases were referred to mediation. Between January 1994 and December 1994, approximately 10% of civil cases were referred to mediation.
Case selection
Eligibility of cases.
Local Rule 39.1 does not specify which cases are eligible for mediation. In practice, tort and contract cases are most frequently referred, while administrative and bankruptcy appeals are considered ineligible.
Referral method.
Judges may order cases into mediation on their own initiative or at the request of a party. Parties may also volunteer to participate.
Opt-out or removal.
Parties may petition the assigned judge for removal from mediation.
Scheduling
Referral.
Local Rule 39.1 does not address this issue. In practice, referral to mediation may occur at any time appropriate to the case.
Written submissions.
After selection of a mediator, parties must provide the mediator with a copy of the pretrial order. If there is no pretrial order, they must provide a copy of their pleadings. Each party must also give the mediator a memorandum presenting a concise statement, not exceeding ten pages, of contentions regarding both liability and damages. The memorandum must be served on all parties at least seven days before the mediation conference. The mediator may also request confidential memoranda from each party in which they must state the strengths, weaknesses, and settlement range of the case.
Mediation session.
The mediation conference should occur no more than two months after the mediator has been selected. The mediator schedules the mediation session.
Number and length of sessions.
Mediation sessions generally last a half day to a day.
Program features
Discovery and motions.
Tolling or continuation of case events during the ADR process is handled on a case-by-case basis.
Party roles and sanctions.
The attorney primarily responsible for the case must attend and must be prepared to discuss all issues in good faith. The mediator determines whether parties should attend or should be available. A party represented by an insurance company need not attend, but the insurer's representative must attend and must have full settlement authority within the limits set by the insurer. Failure to attend must be reported to the court by the mediator and may be sanctioned.
Outcome.
If settlement does not result from the mediation, the plaintiff must file with the clerk a certificate showing that there has been compliance with the mediation process but that settlement has not occurred. If the mediator makes written suggestions regarding settlement, these may not be filed with the clerk or made available in any way to the court or jury.
Confidentiality.
All proceedings of the mediation conference are privileged and may not be reported, recorded, placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission. No party is bound by anything said or done in the mediation session unless it is reduced to a written agreement.
Neutrals
Qualifications and training.
The court selects attorneys for its register of neutrals from lists of qualified candidates submitted by the Federal Bar Associations of Eastern and Western Washington. Minimum qualifications are admission to the bar for at least five years and membership in the bar of either the Eastern or Western District of Washington. The court does not have a training requirement for the attorneys selected for its register.
Selection for case.
Parties have ten days from the time of the required premediation session to select a mediator from the court's register of mediators, special masters, and arbitrators. If they cannot agree, the court selects the mediator from the register.
Disqualification.
Local Rule 39.1 does not address this issue.
Immunity.
The court believes that mediators have absolute quasi-judicial immunity under case law.
Fees.
Mediators serve without pay.
Program administration
The mediation program is administered by the chambers of each judge.
Arbitration in Washington Eastern
Overview
Description and authorization.
Nonbinding, voluntary arbitration is one of several forms of ADR adopted in 1988 in the Eastern District of Washington. Authorized by Local Rule 39.1, referral to arbitration usually occurs in cases that have participated in the court's mediation program but have failed to settle. In these cases, once the mediation process is completed, the mediator and/or judge explores with the parties whether appointment of an arbitrator might resolve the case. Parties to any other case may also use arbitration by stipulation and with approval of the court. In cases participating in arbitration, the parties select an arbitrator from the court's register of mediators, special masters, and arbitrators. After the arbitration hearing, which is conducted under oath and according to the Federal Rules of Evidence, a party must move for trial de novo within thirty days of filing the arbitration award or the award becomes the final judgment in the case.
Number of cases.
Between January and December 1994, approximately 2 percent of the court's civil cases were referred to arbitration.
Case selection
Eligibility of cases.
The court's Local Rule 39.1 does not specify either eligible or ineligible case types. In practice, primarily tort and contract cases are referred to the mediation/arbitration process. Cases in arbitration are only those in which the parties agree to arbitration after mediation has not resolved the case. No case types are presumed to be excluded or inappropriate.
Referral method.
Judges may order cases into the mediation or arbitration process, or both, on their own initiative or at the request of a party. Parties may also volunteer to participate in the process. For cases that reach the end of the mediation process without a settlement, the mediator or judge, or both, explores with the parties whether arbitration would help resolve the case. If the parties agree to arbitrate, they must prepare and file a written agreement.
Opt-out or removal.
If a judge refers a case to ADR, a judicial order is required for removal.
Scheduling
Referral.
Local Rule 39.1 does not address the timing of referral into the mediation or arbitration process or both. In practice, judges refer parties to the process at any stage in the litigation deemed appropriate for the case. The arbitration process occurs only after mediation has been used and has not resolved the case.
Discovery and motions.
The arbitration hearing is conducted on the basis of the pleadings and discovery that are before the court at that time. Further proceedings in the case are stayed pending the hearing unless the arbitrator authorizes additional discovery.
Written submissions.
The arbitrator determines the need for and scope of any prehearing submissions by the parties.
Arbitration hearing.
The hearing occurs as early as possible consistent with the parties' need to prepare for it. The arbitrator determines the place and date of the hearing, in consultation with the parties.
Length of hearing.
Arbitration hearings usually last one to two days.
Program features
Party roles and sanctions.
Attendance at the arbitration hearing is required and enforced by the assigned judge. The court's rule does not specify whether or what type of sanctions might be imposed for failure to comply with the procedure's requirements.
Filing of award.
The arbitrator files the award with the clerk's office "with reasonable promptness," and the clerk sends copies to the parties. If the parties do not request a modification of the award or that it be set aside altogether and a trial de novo take place, the award becomes the judgment.
De novo request.
If a party demands trial de novo, the court may assess reasonable attorney's fees and costs against that party if he or she fails to win a judgment more favorable than the arbitration award.
Confidentiality.
There may be no ex parte communication between the arbitrator and any counsel or party. A party may have a transcript made but must make it available to other parties if they request and pay for a copy. If the parties do not reach agreement, no transcript is admissible in any subsequent trial de novo except for impeachment purposes, and any evidence of or concerning the arbitration may not be admitted as evidence.
Neutrals
Qualifications and training.
The Federal Bar Associations of Eastern and Western Washington submit to the court lists of qualified attorneys from which the judges select some to be on the court's register. Minimum qualifications are admission to the bar for at least five years and membership in the bar of the Eastern or Western District of Washington. The court does not require or provide training for the neutrals on its roster.
Selection for case.
Parties may select an arbitrator from the court's register of mediators, special masters, and arbitrators. If the parties do not want to select an arbitrator or cannot agree on one, the court makes the appointment from the register. When the court makes the appointment, it attempts to appoint an arbitrator with expertise in the subject matter of the case.
Disqualification.
This subject is not addressed in the local rules.
Immunity.
The court believes that arbitral immunity is provided by case law.
Fees.
There is no monetary compensation for the arbitrators.
Program administration
Each judge administers ADR use and referral in his or her cases.
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