Western District of Wisconsin
IN BRIEF
Process summary
Magistrate judge settlement.
In the Western District of Wisconsin, magistrate judges are the primary settlement facilitators. Currently, one magistrate judge, who is also the clerk of court, conducts almost all of the court's settlement work. The trial judges never participate in settlement discussions. All civil cases are eligible for magistrate judge settlement assistance, except pro se litigation, collection cases, and cases in which the district court acts as an appeals court. A variety of facilitation or mediation techniques are used by the magistrate judges.
One judge requires counsel to send the magistrate judge a confidential settlement letter approximately six to eight weeks before the trial date. Once the magistrate judge receives these letters, he contacts counsel to explore the feasibility of settlement. The magistrate judge uses a variety of approaches to pursue settlement, depending on the desires of the parties and the needs of the case. He may conduct a series of telephone calls with counsel or schedule a settlement conference. At the conference, joint or separate sessions may be used. Clients generally do not participate in the telephone sessions, but may be asked to participate in a settlement conference at the courthouse. Settlement efforts may commence at any time suited to the case and last anywhere from fifteen minutes to five hours. All settlement efforts are confidential, and the trial judge is advised only of the likelihood of resolution.
Settlement intervention by the magistrate judge may be initiated by specific request of the trial judge or by request of one or all parties. The magistrate judge may also commence settlement overtures on his own initiative. On average, the clerk/magistrate judge participates in five to ten settlement efforts per month.
Early neutral evaluation (ENE).
Under the court's CJRA plan, adopted December 31, 1991, the court authorized an experimental ENE program. See below.
Summary jury trial (SJT).
On occasion, the court conducts a summary jury trial-generally only in cases that are headed for long trials. The assigned judge usually conducts the SJT, although a magistrate judge may preside. Summary jury trials are used only if the parties consent.
Of note
Obligations of counsel.
Counsel are required to read the court's brochure on dispute resolution choices and to discuss the court's ADR options with their clients.
Information from court.
The court distributes to all counsel a pamphlet that answers general questions about dispute resolution procedures and describes the various processes available in the district.
For more information
Joseph W. Skupniewitz, U.S. Magistrate Judge and Clerk of Court, 608-264-5156
IN DEPTH
Early Neutral Evaluation in Wisconsin Western
Overview
Description and authorization.
The Western District Bar Association and the Western District of Wisconsin established a voluntary ENE program with volunteer attorney evaluators in May 1993. Under the program, which is experimental, the clerk advises counsel of the availability of the program and asks them to discuss the process with their clients. If all parties agree, the clerk helps the parties choose an evaluator from the roster of experienced attorney-volunteers assembled by the bar association. The ENE session, which is intended to enhance early settlement opportunities and case planning, generally occurs early in the pretrial period before the initial case management conference. The program is authorized under the district's CJRA plan, adopted December 31, 1991.
Number of cases.
Approximately one case a month is referred to ENE.
Case selection
Eligibility of cases.
If all parties consent, almost any civil case is eligible for ENE, although pro se litigants generally are excluded from ENE, as are collection cases and appellate cases.
Referral method.
Participation in the district's ENE program is voluntary and requires the consent of all parties. Counsel are invited to consider the process by a letter from the clerk of court shortly after filing. Interested counsel set up a conference call with the clerk, and if all parties choose to participate, the referral is made.
Opt-out or removal.
In this voluntary program, participants may opt out freely at any time.
Scheduling
Referral.
A referral to ENE is generally made before the initial case management conference in the case.
Written submissions.
Submissions are at the option of the evaluator. Experience to date is inadequate to tell whether written submissions will generally be required.
ENE session.
The evaluation session is held shortly after referral. The evaluator makes the logistical arrangements for the sessions, which are held at his or her office.
Number and length of sessions.
This information is not currently available.
Program features
Discovery and motions.
All other case activities must go forward during the ENE process.
Party roles and sanctions.
The evaluator may order the parties to attend the ENE conference. The court's plan does not specify whether or what type of sanctions might be imposed for failure to comply with the attendance and other requirements.
Outcome.
Nothing is filed with the court at the conclusion of the ENE session.
Confidentiality.
The evaluation session and the evaluator's assessment are confidential.
Neutrals
Qualifications and training.
The evaluators are experienced attorneys in the district who have volunteered to serve as evaluators. No formal qualification or training requirements have been established by the court.
Selection for case.
With the assistance of the clerk, counsel select an evaluator from the court's roster. Generally, evaluators with expertise in the legal area in dispute are selected.
Disqualification.
There are no rules or guidelines in this area.
Immunity.
The court has not addressed this issue.
Fees.
The evaluators serve without compensation.
Program administration
The bar association set up the early neutral evaluation program by obtaining volunteer evaluators. The clerk of court advises counsel of the availability of the program and helps counsel select an evaluator. Thereafter all matters are handled by the evaluator working with the parties.
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