"THE DISTRICT COURT IS COMMITTED TO MAKING DISPUTE RESOLUTION AN EFFECTIVE AND INTEGRAL PART OF THE ADMINISTRATION OF JUSTICE IN THIS JURISDICTION..."
JOHN GARRETT PENN
Chief Judge
The Court's alternative dispute resolution (ADR) programs were created in 1989. The programs were designed to give litigants easy access to dispute settlement techniques and, in doing so, to increase the chances for consensual resolution at every stage of the litigation process. The Court also hoped that its programs would increase citizen satisfaction with the outcomes of particular disputes, save judicial and private resources, speed case resolution and increase the overall efficiency of the justice system generally.
The Court currently offers two dispute resolution programs: mediation and early neutral evaluation (ENE). Mediation is a process which allows litigants to negotiate a voluntary settlement with the help of a neutral third party. Early neutral evaluation gives the parties a non-binding, expert opinion on the merits of their case. Though each program has a different emphasis, both have roots in the following basic principles:
The Court's dispute resolution programs have proven effective in encouraging the early settlement of cases. Case closure is not, however, the programs' main purpose. Rather, the Court's efforts are motivated by a desire to promote the satisfying resolution of disputes.
Litigants in the Court's ADR programs benefit from an opportunity to save time and money, as well as the option to settle all or part of their suit with the help of an experienced professional. Individuals, institutions and government agencies have all been parties to successfully resolved disputes. Although participation in these programs is voluntary, many litigants have turned to them as a way of addressing the concerns that gave rise to their litigation and of resolving matters in a way that is more satisfactory than a Court-imposed solution.
The mediation program at the United States District Court for the District of Columbia offers litigants several advantages over traditional forms of negotiation. First, because the mediator has no stake in the outcome of a particular case, his or her presence can prove invaluable in crafting a mutually beneficial settlement agreement. A mediator may also improve deteriorating communications between parties by helping to diffuse hostile or emotional feelings. Finally, the mediator can help the parties concentrate on the crucial issues and identify the interests which lie at the heart of the dispute.
Civil cases filed in the District Court can be designated for the mediation program in one of two ways: the judge may recommend that a case enter the program and encourage the parties to consent to the process, or parties themselves may ask the judge to refer their case into mediation. After a case enters the program, the Court appoints a qualified mediator who arranges an initial joint session, usually held within three weeks of the mediator's appointment. Participation in the mediation program does not generally affect the regular calendaring and processing of a case; unless the judge orders otherwise, cases that are not settled go to trial on a normal schedule.
All parties and their counsel are required to attend the joint sessions. If a party to a suit is an institution or unit of government, the Court requires that counsel attend the session and that someone with settlement authority either attend or be readily accessible by phone. If an agreement is reached, disposing of all or part of the case or affecting pretrial or case management motions, counsel are expected to file appropriate motions to notify the Court of the agreement.
During a mediation session, each participant has the opportunity to voice his or her perceptions of the dispute and to ask questions. If an agreement is not immediately forthcoming, the mediator may arrange to meet individually with each party to further explore the issues and suggest sessions until the parties either settle their dispute or reach their Court imposed deadline.
Prior to the initial session, the parties are required to submit to the mediator, and to exchange among themselves, short position papers detailing the important facts and legal issues of their case. These papers are not briefs and are not filed with the Court. In fact, all documents and negotiations associated with the mediation program are confidential and cannot be introduced during a subsequent trial should the case not be settled. At no time will the Court or any judge be made aware of what is discussed during a mediation session.
Since mediation is a confidential process, mediators do not communicate with judges; the referring judge never knows the identity of the mediator assigned to a ease. Before accepting the assignment of any case, the mediator cheeks for possible conflicts of interest and is required to recuse himself or herself from situations in which participation would be inappropriate.
Early neutral evaluation (ENE) is a process in which the parties present their dispute before a neutral expert and receive an unprejudiced assessment of their case. The single session is designed to accomplish two things: provide the litigants with a realistic prediction of the Court's ultimate decision, and help the parties save time and money during the initial stages of their lawsuit.
The evaluator can, as a disinterested authority in a particular area of the law, assist the parties in identifying the strengths and weaknesses of their respective positions. S/he offers a reasoned judgment of the value of the case, anticipates the likelihood of liability and estimates the possible range of damages. Although the evaluator's opinion is non-binding, it can motivate all parties to reassess their case. If the parties wish to discuss settlement, the evaluator can help them negotiate a mutually acceptable agreement.
In addition, an ENE session can assist the parties in avoiding unnecessary expense by helping them reach agreement on case management issues. Parties can achieve significant savings by streamlining the discovery process, reducing motions activity and eliminating unnecessary pleading.
Since the purpose of ENE is to present the principals in a dispute with a non-partisan assessment of their claims, all parties and their counsel are required to attend the ENE session. When one or both of the parties is an institution or government entity, the attorney must attend, accompanied by someone from the institution with authority to settle. Insurance company representatives with settlement authority are required to attend in cases involving insurance carriers.
The centerpiece of the ENE program is a single joint session which typically lasts two hours. Each party is given sufficient time to make a short oral presentation of its position. Since ENE is an informal proceeding, the rules of evidence do not apply and there are no cross-examinations. The evaluator listens to each side and offers a reasoned oral judgment of the merits of the case, including the likelihood of liability and range of damages. If the parties wish, the evaluator can also coordinate plans for information sharing, discovery and/or settlement.
Prior to the ENE session, the parties exchange and submit to the evaluator short evaluation papers outlining the pertinent factual and legal issues involved in the dispute. These papers also include important documentation and identify any individual whose presence might significantly improve the productivity of the session. As in mediation, these papers are not filed with the Court; all paperwork and discussions derived from the ENE session, including the evaluator's case assessment, are strictly confidential and cannot be used in Court. The judge will not be informed of the evaluator's identity, or of his or her conclusions.