Wednesday, September 20, 2017

LR 16.3: Alternative Dispute Resolution: General Provisions

(a) ADR Favored. Alternative dispute resolution (ADR) refers to a set of procedures that seek to provide litigants a more informal, less expensive, and less adversarial method for resolving their disputes than is afforded by traditional litigation procedures. The judges of this district favor ADR methods in cases where the court determines, after consultation with the parties, that ADR may help resolve the case. The ADR methods approved by these rules include facilitative mediation (LR 16.4); case evaluation (LR 16.5); settlement conferences (LR 16.6); and other procedures (LR 16.7). The court will also consider other ADR methods that the parties propose.

(b) Court Administration of the ADR Program. ADR is authorized in all civil actions in this district under 28 U.S.C. § 651(b). Each ADR program is governed by these rules.

(c) Consideration of ADR. In appropriate cases, as part of the conference held under Rule 26(f) of the Federal Rules of Civil Procedure, or at some other conference ordered by the court, all litigants and counsel must consider and discuss the use of an appropriate ADR process at a suitable stage of the litigation.

(d) Confidentiality. Communications in ADR proceedings are confidential. They are not subject to discovery, are not admissible in a proceeding, and may not be disclosed to anyone other than the ADR participants unless the court permits disclosure. No party may compel a mediator to produce documents that relate to, or testify to matters discussed during, ADR proceedings except on order of the court.

(e) Judicial Officers. District judges and magistrate judges performing alternative dispute resolution functions, such as serving as mediators or settlement conference judges, act in their capacity as federal judicial officers.

(f) Neutrality of Evaluators, Mediators and Arbitrators.

    (1) Standards for Disqualification. The standards for disqualification of a judicial officer under 28 U.S.C. § 455 apply to an evaluator and mediator. If the parties agree to the rules of an arbitration tribunal (such as the American Arbitration Association), the standards for disqualification of an arbitrator in those rules apply. If the rules of an arbitration tribunal do not apply, the standards for disqualification of a judicial officer under 28 U.S.C. § 455 apply to an arbitrator.

    (2) Procedure for Disqualification. If an evaluator, mediator, or arbitrator becomes aware of facts that may require disqualification, or a party raises an issue about disqualification, the evaluator, mediator or arbitrator must disclose the relevant facts to the parties. If a party requests that the person withdraw, the person may withdraw and notify the court that another person should be appointed. If the person determines that withdrawal is not warranted, the person may elect to continue. The objecting party may then ask the court to remove the person by filing a motion. This procedure does not apply if the parties have agreed to another procedure.

(g) Status of Discovery, Motions and Trial During the ADR Process. Cases referred to ADR continue to be subject to the case management schedule established by the judge assigned to the case. Unless otherwise ordered, parties are not precluded from filing pretrial motions or pursuing discovery. Referral of a case to ADR is not grounds to avoid or postpone any deadline or obligation imposed by the case management order unless ordered by the court.

(h) Attorney's Responsibility for Payment of Fees. The attorney or law firm representing a party participating in ADR is directly responsible for fees payable to the court, mediators, or arbitrators. Parties not represented by an attorney are personally responsible for fees. To the extent consistent with ethical rules, the attorney or law firm may seek reimbursement from the client. If any attorney or unrepresented party is delinquent in paying any fee required to be paid to a mediator or arbitrator under these rules, the mediator or arbitrator may petition the court for an order directing payment, and any judge or magistrate judge assigned to the case may order payment, upon pain of contempt.

COMMENT:Responsibility for payment of fees to mediators can be adjusted by the Court, considering the fairness in allocating likely expenses among the parties. In cases in which a party is represented by a pro bono attorney under the Court's pro bono counsel program, volunteer mediators are available at no cost to the parties. See also LR 16.4(d).

February 01, 2015