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July 2006

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This article is in the news archives --- for current news go to the Third Branch News.

 

In Resolving Disputes, Mediation Most Favored ADR Option in District Courts


“Survival. It’s a survival mechanism, a way for us to stay on top of our caseload,” said Sheryl Loesch, clerk of court for the U.S. District Court for the Middle District of Florida. Loesch refers to mediation, the most popular form of alternative dispute resolution (ADR) in the federal district courts. The Middle District of Florida—among the top 10 district courts using mediation—referred more than 1,000 civil cases to mediation in calendar year 2005. More than one-half of the mediated cases settled through the mediation process. “With our caseload and our lack of judgeships, it’s the only way we can handle our workload,” said Loesch.

The ADR Act of 1998 requires the district courts to provide ADR services to civil litigants and Recommendation 39 of the Judiciary’s Long Range Plan encourages it. While courts may use arbitration, Early Neutral Evaluation (ENE), settlement conferences, case valuation, summary jury trials, and other forms of ADR, it is mediation that is most consistently favored in the district courts as a way to resolve disputes. In a 2005 preliminary summary conducted by the Federal Judicial Center in 49 district courts, 15,555 cases were referred to mediation out of a total 24,835 cases that went through ADR.

Although the definition of mediation can vary widely depending on court, judge, and litigants, the Federal Judicial Center’s Donna Stienstra, in her sourcebook, ADR and Settlement in the Federal District Courts defines mediation as a flexible, nonbinding dispute resolution procedure in which a neutral third party—the mediator—facilitates negotiations between the parties to help them settle.

The U.S. District Court for the Northern District of California was one of the pioneers in the use of ADR. The district has developed a sophisticated, multiple-option system offering a variety of ADR options, including mediation, ENE, nonbinding arbitration, and settlement conferences. “We’re committed to working with our district’s lawyers and parties to find the best ADR option,” said Howard A. Herman, the district’s Director of ADR programs, “but we’ve found that mediation is the most popular. We believe it’s because it’s the most flexible of all the options.”

Under Civil Local Rule 16, the district requires that every attorney and client certify that they have read the handbook entitled Dispute Resolution Procedures in the Northern District of California and considered the ADR options.

“In our district, we think about success in terms of the way in which ADR satisfies lawyers and litigants—how useful it is to them,” Herman said. Over the last seven years, the court has tracked how participants felt about going through their ADR procedures. Ninety-two percent of the ADR participants responding to a court questionnaire said that mediation was fair, and 96 percent would volunteer appropriate cases again. “It appears,” said Herman, “that attorney and public satisfaction levels with ADR—and mediation in particular—are very high.”

Danny Mullis became the first ADR Program Director in the U.S. District Court for the District of South Carolina in 1999; he previously was an attorney who spent many years mediating cases. The District of South Carolina has been among the top five district courts using mediation in each of the last five years. Thanks to court-sponsored mediation programs at federal and state levels, and ADR courses at South Carolina law schools, mediation has become an integral part of the state’s legal culture.

“Our judges recognize the value this option gives to litigants,” said Mullis. “Litigants can save both money and time through the use of mediation. Perhaps most importantly, in mediation litigants retain control over the terms of the resolution.”

A local rule requires that in every civil case each party file and serve the ADR Statement and Certification.

“In signing that statement and certification,” said Mullis, “counsel is affirming that he or she has discussed the availability of mediation with the client and discussed the advisability and timing of mediation with opposing counsel. If you have a civil case in the District of South Carolina, you will encounter mediation, and before the litigation is concluded, you likely will have discussed mediation with your client, with opposing counsel and with the court.”

Mediation is mandatory in the Western District of Washington. Clerk of Court Bruce Rifkin admits this might increase the number of cases referred to mediation, “but it’s not what drives it,” he said. “What drives it is our history and culture. Mediation in our district began in a time when we were short on judges and had a high caseload.”

In the early 1980s when the court was struggling with its caseload, then-Chief Judge Walter McGovern went to the local bar association to find ways to address the court’s workload crisis. They told him mediation was the answer.

“It was bar-driven,” said Rifkin. “They were the leaders in bringing mediation to our court and the ones who use it successfully. The bar is at the core of training, of recruiting mediators, and of encouraging users of mediation in our district. What we do in mediation as a district court is not so very different from other courts, but we have the bar’s commitment to participate.”

Most civil cases in the U.S. District Court for the Southern District of Florida are referred to mediation, 3,152 cases in 2005. That’s the rule—literally. Under the district’s local Rule 16.2D, mediation is to occur in every civil case, except for specific types of cases noted in the rule, 60 days prior to trial. The rule defines mediation, the types of cases subject to mediation, procedures to refer a case or claim to mediation, and certification of mediators.

“We’re a busy court, and we still have more jury trials, on average, than other district courts,” said Clerk of Court Clarence Maddox (S.D. Fla.). “But in the mid-90s each of our judges had 34 to 40 jury trials per year, well over the national average. I think there was a sense that parties needed to be encouraged to pursue all avenues for reconciliation. Mandatory mediation forces parties to get together prior to trial.”

In the federal courts overall, most of the 60-plus courts that provide mediation as an ADR option don’t mandate participation. Last year, these courts sent anywhere from 2 to over 500 cases to mediation.

Recently, the Ninth Circuit Committee on Alternative Dispute Resolution with the Western Justice Center Foundation produced the publication Education Programs on Court-Sponsored ADR: Model Programs and Guide Resources, offering ideas for district court judges and members of the bar on how to organize and implement ADR. The guide addresses a variety of topics, from initiating dialogue among judges, lawyers and clients to understanding the needs of corporate clients, to timing issues and implications for litigants, attorneys and court personnel.

For those courts wishing to establish ADR programs or enhance existing programs, on-site consultations are available through the FJC’s Program of Consultations in Dispute Resolution. The program is funded by a grant from the William and Flora Hewlett Foundation to the Federal Judicial Center Foundation. To inquire about a consultation, contact Donna Stienstra (202-502-4081; dstienst@fjc.gov) or Laural Hooper (202-502-4093; lhooper@fjc.gov). A copy of the Consultation Program brochure is available at the FJC’s intranet site.