Eastern District adds new local ADR rules

By Ed Wesoloski The Daily Record Newswire Federal practitioners in the Eastern District of Michigan will have five new local court rules governing alternative dispute resolution to contend with beginning Feb. 1, 2015. New LR 16.3, Alternative Dispute Resolution, states the court's preference for ADR in appropriate cases, and approves the use of facilitative mediation (LR 16.4); case evaluation (LR 16.5); settlement conferences (LR 16.6); and other procedures (LR 16.7). The rule provides that all ADR proceedings are confidential, and that parties cannot "compel a mediator to produce documents that relate to, or testify to matters discussed during, ADR proceedings except on order of the court." The rule specifies procedures for disqualifying evaluators, mediators or arbitrators and makes clear that the attorneys or law firms representing the parties, and pro per litigants, are personally responsible for paying fees. However, the comment accompanying LR 16.3 advises that, "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." Facilitative mediation in the Eastern District is governed by new LR 16.4. The rule describes the process as "a flexible, nonbinding dispute resolution process in which an impartial third party - the mediator - facilitates negotiations among the parties to help them reach settlement. "Mediation seeks to expand traditional settlement discussions and broaden resolution options, often by going beyond the issues in controversy." Under LR 16.4, mediators can meet jointly or separately with the parties. The mediators' roles are those of facilitators only. They do not decide issues or engage in fact-finding. Mediators are qualified either through training or experience. "Completion of a mediator training course approved by the Michigan Supreme Court Administrative Office is sufficient to establish qualifications," under LR 16.4. The court has veto power over the parties' selection of a mediator. The rule describes in detail the required procedures for conducting mediations. Lawyers familiar with case evaluation under MCR 2.403 will feel right at home with LR 16.5, Case Evaluation. If the court selects a case for case evaluation and the parties consent, and also agree to be bound by the state rule's sanctions provisions, the "Wayne County Mediation Tribunal Association or another Michigan state trial court case evaluation system will evaluate cases, unless the court orders otherwise." The new local rule guards against double-dip attorney's fees. "Actual costs, including attorney fees, may be awarded under this rule. However, if a statute or Federal Rule of Civil Procedure also authorizes the payment of attorney's fees, duplicate costs and attorney's fees may not be awarded." The comment accompanying LR 16.5 explains that, for example, "if attorney's fees are awarded pursuant to Fed. R. Civ. P. 68 - Offers of Judgment, or 42 U.S.C. 1988 - Civil Rights Cases, the same fees may not be awarded pursuant to this Local Rule." Settlement conference procedures fall under new LR 16.6. Under this rule, the judge assigned to the case may conduct a settlement conference, or order that a different judge or magistrate judge handle the settlement conference. Parties may be required to accompany their attorneys to the conference. Under the rule, "For parties that are not natural persons, the court may require a natural person representing that party who possesses ultimate settlement authority to attend in person. "In cases where an insured party does not have full settlement authority, the court may require an official of the insurer with ultimate settlement authority to attend." LR 16.6's comment advises that the "court may consider assigning a settlement conference to another judicial officer rather than ordering a case to facilitative mediation when the amount in controversy is low or a party appears pro se." In addition to facilitative mediation, case evaluation and settlement conferences, other ADR methods may be used under LR 16.7. The rule mentions summary jury trials, summary bench trials and, if the parties consent, arbitration. A judge can also "recommend or facilitate the use of any extrajudicial procedures for dispute resolution not otherwise provided for by these rules." Former LR 16.4, Pretrial Filings and Exchanges, has been renumbered as LR 16.8. Published: Thu, Jan 22, 2015