Western District of Washington


IN BRIEF

Process summary

Mediation. The Western District of Washington established a mediation program in 1979 under Local Rule 39.1(c). See below.

Arbitration. The Western District of Washington is one of ten courts authorized by 28 U.S.C. §§ 651-658 to establish a voluntary, nonbinding court-annexed arbitration program. See below.

Judicial settlement conferences. All district and magistrate judges conduct settlement conferences, either at the request of the parties or at the direction of the trial judge. In mediated cases that do not settle, the trial judge frequently orders the parties to participate in a settlement conference with a district or magistrate judge.

Of note

Obligations of counsel. Attorneys are required to discuss ADR with opposing counsel and to indicate that they have done so in their case management statement. Counsel must also address in their case management plan the suitability of ADR for their case and be prepared to discuss this topic with the assigned judge.

Information from court. The court's brochure, Alternative Dispute Resolution Procedures, is given to counsel on request.

Evaluation. The court has conducted an evaluation of its mediation program and has prepared a written report. 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).

For more information

Janet Bubnis, Chief Deputy Clerk, 206-553-5598


IN DEPTH

Mediation in Washington Western

Overview

Description and authorization. In 1979, Local Rule 39.1 established a mandatory mediation program in the Western District of Washington. Almost all civil cases are referred to mediation. Referral is generally made by the court at the scheduling conference or in the scheduling order. At least thirty days before the mediation session, the attorneys must meet to try to negotiate a settlement. Mediation sessions generally occur after discovery is completed.

Number of cases. The court does not keep statistics on mediation referral and use but notes that almost all civil cases are eligible for and are referred to mediation.

Case selection

Eligibility of cases. Almost all civil cases are eligible for mediation except Social Security cases, habeas corpus petitions, student loan recovery cases, Veterans Administration overpayment cases, and civil forfeitures.

Referral method. All eligible cases are referred by the assigned judge. Party consent is not required. Parties are notified of the referral through the scheduling order or in a separate referral order that accompanies the scheduling order.

Opt-out or removal. There are no written procedures for removing a case from mediation.

Scheduling

Referral. Referral is generally made by the assigned judge at the scheduling conference.

Written submissions. Before the mediation session, counsel for each case must send the mediator copies of the pretrial order. If there is no order, copies of the relevant pleadings must be submitted. Each party must also prepare a case summary of ten pages or less and must serve it on all parties and the mediator not less than seven days before the mediation conference. Each party must also give the mediator a confidential statement of its current offer or demand.

Mediation session. The mediation session generally is held after the close of discovery. It is held at the neutral's office and is arranged by the neutral and the parties.

Length and number of sessions. Mediation may take as little as an hour or two or may extend for substantially longer. Sometimes the parties and mediator may agree that one or more follow-up sessions would be fruitful.

Program features

Discovery and motions. At the time of the mediation session discovery is usually, but not always, completed. Dispositive motions may be pending.

Party roles and sanctions. In addition to counsel, parties and insurers with settlement authority must attend the mediation conference in person. Failure to attend or to comply with the rules regarding mediation or the directions of the mediator must be reported to the court in writing by the mediator and may result in sanctions.

Mediator recommendations. The mediator has no obligation but may in his or her discretion provide attorneys for the parties with written comments or recommendations regarding settlement. Counsel must forward the recommendations to their clients and must comply promptly with any request by the mediator that a party be advised of such written recommendations. The memorandum may not be filed with the clerk or be made available to the judge or jury.

Outcome. Mediators do not file a report of the mediation session. They may, however, without disclosing any communications made at the mediation conference, advise the court in writing whether the appointment of a settlement judge or the use of other ADR procedures is advisable. Copies of any such advice must be provided to counsel.

Confidentiality. All proceedings of the mediation conference, including any statement made by any party, attorney, or any other participant, are in all respects 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 may be bound by anything done or said at the conference unless a settlement is reached, in which event the agreement must be reduced to writing and is binding on all parties to that agreement.

Neutrals

Qualifications and training. To become a mediator on the court's roster, an attorney must have been a member of the bar of a federal district court for at least seven years; be a member of the bar of this court; and devote a substantial portion of his or her practice to litigation. The court does not require training for mediators.

Selection for case. The parties must attempt to agree on a neutral from the court's roster. If they cannot, the court will designate a mediator and will send notice to the mediator and all attorneys of record.

Disqualification. There are no court rules regarding disqualification of neutrals.

Immunity. The court believes mediator immunity is provided by case law.

Fees. Although mediators provide their services pro bono, parties may agree to compensate the mediator.

Program administration

The program is administered by the clerk's office and overseen by a liaison judge.

Arbitration in Washington Western

Overview

Description and authorization. The Western District of Washington is one of ten courts authorized by 28 U.S.C. §§ 651-658 to establish voluntary, nonbinding court-annexed arbitration. Implemented in May 1992, under Local Rule 39.1(c), the procedure is authorized district-wide, but only one judge has referred cases to arbitration. The procedure takes place only if the parties consent and is nonbinding unless the parties agree otherwise. Before scheduling the arbitration hearing, the judge sets a trial date, which will be no later than the date that would have been set had the case not been submitted for arbitration. Generally, the arbitration hearing occurs no more than 180 days after answer is filed. A single arbitrator presides. Any party may demand trial de novo without prejudice within thirty days of the arbitration decision.

Number of cases. Two cases were referred between January and September 1994.

Case selection

Eligibility of cases. Parties in any case may consent to arbitration regardless of the amount in controversy or the nature of the relief sought, including adversary proceedings in bankruptcy. No cases are explicitly excluded, but cases excluded from mediation are also generally considered ineligible for arbitration.

Referral method. Referral to arbitration is based wholly on party consent. If the parties want to arbitrate, they sign a consent form provided by the court. An order of referral is then entered.

Opt-out or removal. The court may decline to refer any case to arbitration in which the objectives of arbitration would not be realized.

Scheduling

Referral. Referral to arbitration may occur at any time in the case.

Discovery and motions. The court sets a discovery schedule, a deadline for filing motions, and a deadline for beginning the arbitration hearing. No discovery is permitted during a period from ten days before the arbitration hearing until the award issues.

Written submissions. The arbitrator decides what written materials should be submitted.

Arbitration hearing. The arbitration hearing occurs no more than 180 days after answer was filed. The hearing is held at the courthouse and is arranged by the court staff and the arbitrator.

Length of hearing. No arbitration cases have yet gone to a hearing, so no average length has been established.

Program features

Party roles and sanctions. Client attendance at the arbitration hearing is not required by local rule, but it is generally ordered by the court. Failure to attend the arbitration hearing, to comply with the rules regarding ADR, or to comply with the directions of the arbitrator must be reported to the court by the arbitrator in writing and may result in the imposition of sanctions by the court.

Filing of award. The arbitrator's award is filed under seal and is retained in a separate location from the court file.

De novo request. Parties may request trial de novo within thirty days of the arbitrator's decision. Following trial de novo, the court may assess costs, pursuant to 28 U.S.C. § 1920, and reasonable attorneys' fees against a party demanding trial de novo if that party fails to obtain a judgment more favorable than the arbitration award and if the court determines that the party's conduct in seeking a trial de novo was in bad faith.

Confidentiality. No consent to arbitration will be made known to any district or magistrate judge unless all parties have consented to arbitration. The contents of any arbitration award will not be made known to any judge who might be assigned to the case (1) except as necessary to determine whether to assess costs or attorneys' fees; (2) until the district court has entered final judgment in the action or the action has been otherwise terminated; or (3) for purposes of preparing required reports.

Neutrals

Qualifications and training. To become an arbitrator on the court's roster, an attorney must have been a member of the bar of a federal district court for at least seven years; must be a member of the bar of this court; and must devote a substantial portion of his or her practice to litigation. The court does not require training for arbitrators.

Selection for case. Within fourteen days of the referral to arbitration, the parties may select an arbitrator from the court's roster. If the parties do not select an arbitrator, the clerk selects one. Any selection must be approved by the assigned judge.

Disqualification. There are no court rules regarding disqualification of an arbitrator.

Immunity. The court believes arbitral immunity is provided by case law.

Fees. The court pays the arbitrator's fee of $150 per day.

Program administration

The program is administered by the clerk's office and overseen by a liaison 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