Local Rule 9019-1: SETTLEMENT AND ALTERNATIVE DISPUTE RESOLUTION

RULE 9019-1 SETTLEMENT AND ALTERNATIVE DISPUTE RESOLUTION

(A) Authorization: The Court encourages the parties to meet and consult with each other to achieve settlement. Pursuant to 28 U.S.C. §§§ 651, 652, and 653, as amended by the Alternative Dispute Resolution Act of 1998, the use of mediation as an alternative dispute resolution process in all adversary proceedings, contested and other matters, is authorized.

(B) Obtaining Mediation

(1) Upon joint motion, parties may request, but are not entitled to, mediation.

(2) Any party may request mediation on motion served on all other parties. The motion must state the basis for the request for mediation and that a good faith effort was made to seek mediation by consent without success. Parties will have 14 days from the date of service to object to the motion. The court will make a determination on the motion upon notice and hearing.

(3) The Court may also order mediation sua sponte.

(C) Order to Mediate

(1) In any adversary proceeding, contested or other matter, mediation may only be commenced upon the entry of an order to mediate by the presiding judge.

(2) An order to mediate shall, at minimum, set forth the following:

(a) the individual appointed to act as mediator;

(b) if the parties selected a non-judicial mediator or neutral, the proposed compensation that will be subject to court approval;

(c) unless otherwise ordered by the Court, that mediation processes and procedures and the duties of the parties shall be determined by the court-appointed mediator; and

(d) that the parties or the mediator provide a report to the court of the results of the mediation immediately upon the conclusion of the mediation.

(D) Judicial Mediators

(1) Bankruptcy judges resident in the Eastern District of Virginia are authorized to act as mediators or neutrals.

(2) The decision regarding appointment of a judicial mediator resides exclusively with the presiding judge, and such appointment is effective only upon entry of the order to mediate.

(E) Non-Judicial Mediators or Neutrals

(1) The parties by consent may request the appointment of a non-judicial mediator or neutral.

(2) Appointment of a non-judicial mediator is subject to approval by the presiding judge, and such appointment is effective only upon entry of the order to mediate.

(F) Communications with Mediators Prior to Entry of Order to Mediate

(1) Judicial Mediators: Prior to entry of the order to mediate, parties to the mediation shall not communicate with a judicial mediator about any matters pertaining to mediation.

(2) Non-Judicial Mediators: Prior to entry of the order to mediate, parties to the mediation may communicate with non-judicial mediators only for the purpose of selection and proposed terms of engagement and compensation of a non-judicial mediator for appointment by the Court.

(G) Required Settlement Authority: A judicial mediator to whom a case has been referred may require that counsel and/or a party representative with full settlement authority attend the mediation at any time the judicial mediator considers appropriate.

(H) Compensation of Non-Judicial Mediators or Neutrals: No mediator or neutral may be compensated by contingent fee. Any compensation of a non-judicial mediator or neutral from the estate shall be subject to Court approval after notice and a hearing or as the Court otherwise orders.

(I) Effect of Mediation on Proceedings: Unless otherwise ordered by the Court, the appointment of a mediator or neutral shall not operate to postpone or stay the scheduling of any case or controversy nor shall such appointment be grounds for the continuance of a previously scheduled trial date or the extension of any deadlines previously scheduled by the Court.

(J) Disclosure of Mediation Communications and Writings: The substance of communications and writings in the mediation process shall not be disclosed to any person other than participants in the mediation process; provided, however, that nothing herein shall modify the application of Federal Rule of Evidence 408 nor shall use in the mediation process of an otherwise admissible document, object, or statement preclude its use at trial. Furthermore, unless otherwise agreed to by the party, communications and writings between a party and the mediator shall be considered privileged and confidential and shall not be subject to discovery. No party shall be deemed to have waived the attorney-client or work-product privileges by communicating privileged information to the mediator.

(K) Appointment of ADR Administrator: The chief bankruptcy judge may appoint an ADR Administrator for the district. Duties of the Administrator, if appointed, shall include the following: implementing, administering, overseeing and evaluating the Court's ADR program.

(L) Other Governing Law: Nothing contained in this rule shall in any manner negate or be in abrogation of any other source of authority for conducting mediation, whether by statute, rule, or otherwise.

Comments LBR 9019-1 cross references Rule 83.6 of the Local Rules of Practice of the United States District Court for the Eastern District of Virginia, which makes that rule applicable to adversary proceedings in case before the Court. [New rule effective 3/1/01.]

9019-(1) This rule is substantively rewritten to provide additional direction to the parties and to make explicit its applicability to contested and other matters in addition to adversary proceedings. [New paragraph effective 08/01/17.]

9019-1(J) Paragraph (J) is new and ensures that communications between the mediator and parties remain confidential and privileged. [New paragraph (J) effective 2/15/22.]