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Who will pay for the ADR program selected?
Costs will generally be shared among or between the parties, except for Arbitration. The Court will continue to pay arbitrators, in accordance with 28 U.S.C. §658 and consistent with Judicial Conference policy. Indigent parties may ask the Court to apportion most, or all, of the costs on the other side, or request the appointment of a pro bono neutral.
Are judges still going to try cases?
Yes. Some cases are simply not able to be settled and those cases will proceed to trial. Even in those cases, good faith use of this program will reduce the number of summary judgment motions filed, thereby streamlining the case and enabling judges to conduct trials more quickly.
Will judges still conduct settlement conferences?
Yes. Judges have the discretion to conduct settlement conferences in cases over which they preside or to which they are referred. Additionally, judges may, at the request of another judge on the Court, volunteer their time to conduct settlement conferences in cases that are not otherwise assigned to them.
Does the ADR process happen before, during or after discovery?
Ideally the ADR process will happen before discovery, but after F.R.C.P. 26(a)(l) disclosures. Once parties have spent substantial time and money in discovery, they seem less amenable to settlement. However, in some situations, limited discovery must occur, such as the plaintiff's deposition, before meaningful settlement discussions can take place. These issues should be addressed to the judge assigned to the case and limited discovery may be allowed at the court's discretion.
Why is the emphasis on having ADR so early in the litigation process?
The goal of this program is to help litigants toward an inexpensive and prompt resolution of their case whenever possible.
Who is required to attend the ADR session?
The ADR Policies and Procedures detail who is required to attend the mediation, ENE, or arbitration proceeding. Generally, those persons with authority to resolve the case must be available during the ADR session. Parties will be required to identify those persons who will attend the ADR session and upon order of court, their appearance is mandatory.
Is "in-house" counsel an adequate representative at a mediation or ENE for a corporate or other entity?
If "in-house" counsel meets the applicable criteria that they have the authority to resolve the case and is knowledgeable about the facts of the case, they are an adequate representative.
What if one of the parties does not participate in good faith?
Good faith participation is essential to the use of this program. If one side has a reasonable belief that the other party is not participating in good faith, they should address that issue to either the judge assigned to their case or the ADR Judge, who is the judge who serves as chair of the court's Standing Committee on Case Management/ADR.
How can I become a neutral?
Once you have reviewed the Policies and Procedures for the ADR program found on the court's web site (www.pawd.uscourts.gov) and believe you are eligible to apply for any one or several of the categories (mediator, evaluator or arbitrator), there is an application form on the web site to complete and submit to the court for review and approval.