Local Rule 16.3: Alternative Dispute Resolution

16.3 Alternative Dispute Resolution

(a) Evaluation of Cases for Alternative Dispute Resolution ("ADR")

(1) Upon request by any party or in its discretion and at such times during the progress of the case as appear appropriate, the Court may assign any civil case that is not exempted hereunder for one or more mediation conferences. With the consent of all parties, the Court will also consider assigning any case for any other type of dispute resolution process that is an alternative to traditional litigation, including a summary jury trial.

(2) Litigants shall consider the use of one or more ADR processes at the conference held pursuant to Fed. R. Civ. P. 26(f). They shall also confer about structuring initial discovery to focus potential settlement discussions most economically and efficiently.

(3) The Court will consult with counsel at conferences held pursuant to Fed. R. Civ. P. 16 about the application of ADR processes to the case. The Court may at any stage of any case convene a separate conference to be attended by the trial attorney and each party or their authorized representative to determine whether the issues of the case, the needs and relationships of the parties, or other factors make further efforts at ADR appropriate.

(b) Exclusion of Categories of Cases. Unless otherwise ordered in a specific case, the categories of cases exempted from initial disclosure by Fed. R. Civ. P. 26(a)(1)(B) are also exempt from assignment to mediation administered through this Court. Actions for review on an administrative record and actions by the United States to recover benefit payments or collect on student loans guaranteed by the United States may be assigned to such ADR proceedings as the ADR Coordinator at that location of the Court deems prudent.

(c) Confidentiality

(1) In addition to Fed. R. Evid. 408 and any other applicable privilege, pursuant to 28 U.S.C. § 652(d), evidence of conduct or statements made in settlement negotiations is not admissible to prove liability for or the invalidity of a claim or its amount in the case in which the settlement negotiations occur. In order to promote candor and protect the integrity of this Court's ADR processes, in addition to other protections afforded by law, all communications made by any person (including, but not limited to parties, counsel, and Judge or other neutral participants) during ADR proceedings conducted under the authority of this Court are confidential and are subject to disclosure only as provided in subsection (c)(3) of this Rule. Any participant in the process, regardless of whether that participant is a party to the case in which the ADR proceeding has been attempted or has occurred, may seek an order to prevent disclosure of any communication deemed confidential by this Rule.

(2) Communications deemed confidential by this Rule include, but are not limited to, statements or expressive conduct occurring during the ADR proceeding itself, such as offers to compromise, statements about the value of a case or claim, statements about the strength or weakness of a claim or defense, and statements concerning the possible resolution of all or part of a case. Confidential communications also include communications made in connection with selecting an ADR process, initiating the process, and selecting or retaining a mediator or other neutral.

(3) Communication deemed confidential by this Rule may be disclosed, if such disclosure is not otherwise prohibited by law or court order, only in the following circumstances:

(A) Following an actual or attempted ADR proceeding, neutrals are permitted to report to the Court information intended to aid in further management of the case, including: (i) whether the case has settled or may settle in the near future without further Court management; (ii) if the case has not settled, suggestions about case management (such as the desirability of further pretrial discovery followed by the scheduling of additional ADR proceedings or followed by rulings on one or more issues); (iii) information about the parties' conduct if the neutral concludes that a party did not participate in good faith in the ADR proceeding or otherwise violated a court order or Disciplinary Rule related to the proceeding; and (iv) any other information that the parties authorize the neutral to communicate to the Court; or

(B) All participants to the ADR process, including parties, counsel, and neutrals, consent in writing to the disclosure of the communication; or

(C) A Judge assigned to the case determines that such disclosure is needed in connection with possible sanctions for misconduct relating to the ADR proceeding; or

(D) The Judge who would otherwise enter judgment in the case or, in the event of the unavailability of that Judge, the Chief District Judge, conducts an in camera hearing or comparable proceeding and determines that evidence of the content of the communication is not otherwise available and that there is a compelling need for the evidence that substantially outweighs the policy favoring confidentiality and determines any of the following: (i) that the evidence will be used to establish or disprove a claim of criminal or professional misconduct or malpractice made against a neutral, counsel, or party relating to the ADR proceeding; (ii) that the evidence will be used in a proceeding in which fraud, duress, or incapacity is at issue regarding the validity or enforceability of an agreement reached during the ADR proceeding; or (iii) that maintaining the confidentiality of the communication will pose a significant threat to public health or safety; or

(E) The disclosure is otherwise required by law.

(d) Selection of Mediators and Other Neutrals

(1) Each location of the Court shall maintain and regularly update a roster of appropriately experienced attorneys willing to serve as volunteer neutrals for the Court's ADR programs. A United States Magistrate Judge or Court employee at each location of the Court shall be designated by the Chief District Judge as the "ADR Coordinator" to implement, administer, oversee, and evaluate the Court's ADR programs at that location and to be primarily responsible for recruiting, screening, and training attorneys to serve as neutrals for the Court pursuant to 28 U.S.C. § 651(d).

(2) ADR Coordinators may coordinate scheduling, training of neutrals, and other features of this Court's ADR program with comparable state court ADR programs or bar association programs.

(3) Volunteer mediators for ADR programs administered by the Court shall be appointed by the ADR Coordinator from the lists maintained at the location of the Court where the case is pending. Counsel are encouraged to consult about the selection of a mediator and to propose the appointment of someone having familiarity with the subject matter of a particular case when that is deemed likely to improve the ADR process.

(4) Before accepting appointment in any ADR proceeding conducted under the authority of this Court, the neutral shall make inquiry reasonable under the circumstances to determine whether there are facts that a reasonable person would consider likely to affect his or her impartiality, including personal or financial interest in the outcome of the proceeding, or existing or past relationships with a party, counsel, or a significant, foreseeable witness to the dispute. The neutral shall consider the factors set forth in 28 U.S.C. § 455. The neutral shall decline to participate in circumstances likely to be considered to affect impartiality, and if in doubt, shall disclose facts known or learned to all counsel and pro se parties as soon as is practical.

(5) In unusually complex cases or in other situations in which service as a neutral is anticipated to impose a significant time demand, parties are permitted (but not required) to agree among themselves and with the assigned neutral (other than a Magistrate Judge) to reasonably compensate such neutral. If the parties have memorialized such an arrangement in writing, the Court may enter such orders as are just to enforce such a written agreement.

(e) Remedies and Procedures Not Specified in this Rule

(1) This Court, or any Division or location of this Court, may by general order provide supplemental procedures for ADR that are not inconsistent with this Rule and applicable law.

(2) Any Judge presiding in a civil case may, in that case, enter such orders as are lawful, just, and appropriate to administer fairly an ADR program suitably tailored to it.

(3) Mediators and other neutrals used in ADR proceedings conducted by this Court shall control the proceedings before them.

(4) Any breach or threatened breach of the confidentiality provisions of this Rule and any refusal to attend and participate in good faith by a party or counsel shall be reported to the presiding Judges who may, after notice, impose sanctions or make such other orders as are just.