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On June 1, 2006, the U.S. District Court for the Western District of Pennsylvania initiated a pilot alternative dispute resolution (ADR) program. The purpose of the program was to abide by the congressional mandate that the federal courts explore ADR and to fulfill the mission of the court, which included “providing an impartial and accessible forum for the timely and economical resolution of legal proceedings.” Four district court judges volunteered to participate in the pilot program, the purpose of which was to test a proposed ADR program protocol to see if the experiences of the parties in our courthouse were actually enhanced by the experience. The original participating judges were Chief Judge Donetta Ambrose and Judges David Cercone, Thomas Hardiman and Arthur Schwab. Following Hardiman’s elevation to the 3rd U.S. Circuit Court of Appeals, Judge Nora Barry Fischer took his place in the pilot program. The court adopted revised Local Rule 16.2 for application to cases that are filed on or after June 1, 2006, and are assigned to any of the pilot program judges. The more detailed policies and procedures applicable to the program were published on the court’s Web site, www.PAWD.uscourts.gov. The purpose of this was to provide the court with the flexibility to enhance the policies and procedures as the pilot program progressed. In every case filed in this district, the parties are required to conduct an initial “meet and confer” conference pursuant to Local Rule 26(f). Cases in the pilot program are required to include some additional items of discussion and proposed ruling in their Rule 26(f) report. These additional items are a choice of ADR process and choice of a neutral. If the parties cannot agree, the designation is left to the judicial officer at the subsequent Rule 16 conference. All cases in the pilot program are given 150 days to complete discovery. It is expected, unless agreed to by the parties and the court, that the ADR process, if mediation or early neutral evaluation, will take place within the first 60 days of this discovery period. If the chosen ADR process is arbitration, the time period will be 90 days. Certain limited discovery can take place prior to the ADR process but the goal of the court is to keep expenditures to a minimum and only allow that discovery which is necessary to any potential resolution decision. If the case does not reach a resolution, it will proceed in accordance with the case management order, which may include the filing of dispositive motions and eventual trial. After 14 months (as of July 2007), 263 cases have been referred to ADR pursuant to the pilot program. Mediation has been the most commonly used form of ADR since the program’s inception. As of the date of this article, 184 cases (70 percent) have been referred to mediation. That is likely because it is the form that is best understood by the parties and counsel. Mediation refers to a process in which an impartial neutral, selected by the parties, facilitates negotiations between the parties to help reach a mutually acceptable agreement. The process is non-adjudicative and involves an impartial neutral person, who can be an attorney or a non-attorney. If an agreement is reached, it is one that is mutually agreeable to all parties. The primary function of the mediator should be the enhancement of the parties’ communication. The role of the mediator is not to evaluate the case or to force the parties to agree to something with which they are not comfortable. It is for this reason that a mediator need not be schooled in the particular law of a case. Rather, it is more important that the mediator be educated and/or trained in methods of facilitation. This further explains why non-lawyer mediators may be a good choice in some cases. (The court’s neutral list currently has more than a dozen non-attorney mediators with a variety of backgrounds including medicine and psychology.) It is, of course, entirely possible that the parties may believe that someone educated in a particular area of the law or a former judge would be more effective in helping the parties reach resolution. This choice is left to the parties. The second and less used option is early neutral evaluation (ENE). Thus far, parties in 52 cases, or 20 percent, have chosen this option. The court suspects that the reason for the more moderate use of ENE is that many parties and lawyers do not truly understand it. ENE is a process wherein an impartial attorney with subject matter expertise, selected by the parties, provides a nonbinding evaluation of the case and is then available to assist the parties in reaching agreement if they so choose. ENE is a good choice when one or both parties truly believe that the case cannot be settled, or needs to proceed through dispositive motions. In the common ENE process, the parties and their counsel, in a confidential session, make compact presentations of their claims and defenses, including key evidence as developed at that juncture. The parties submit a written statement of their case in advance of the session. With all parties and counsel present, the evaluator will then provide a non-binding evaluation of the case. A written evaluation can also be requested. If the parties and counsel so desire, the neutral may assist with settlement or mediation discussions. We have been advised that this process is also particularly useful when a lawyer or client is overestimating either the value, or defense, of a case. The evaluator may help identify areas of agreement, assess strengths or weaknesses, and suggest possible resolutions. This ADR method works best when the parties or counsel want guidance or direction toward settlement based upon the applicable law, industry practice or technology and the evaluator has the requisite training and experience. The final court suggested process is arbitration, which is non-binding unless the parties agree otherwise, is usually handled through the court, and is at no cost to the parties. The rates paid by the court to the arbitrators were set by the Judicial Conference in 1991 and remain at $250 per single arbitrator and $100 per arbitrator for a panel of three. Arbitration has been chosen in seven cases, or 3 percent. A single arbitrator or panel of three arbitrators can be used. The court may encourage a single arbitrator simply for ease of scheduling, but this is not mandatory. Arbitration is an expedited, adversarial hearing and under the program procedures, the arbitrators are not to become involved in settlement discussions. In addition to court-sponsored arbitration, litigants are always free to choose private arbitration at their own expense. In order to assist in utilizing the ADR process, the court has developed a pool of potential neutrals, each listed with a short biography on the court’s Web site under the ADR heading. The ADR coordinator and a judicial panel have preliminarily screened each of these neutrals. Minimum qualifications for attorney mediators are seven years in practice, substantial experience in civil litigation in federal court, and 40 hours of mediation training with at least 16 hours of simulation experience. This requirement has been extended to Dec. 31 for completion. Non-attorney mediators must hold appropriate credentials in another discipline, have 40 hours of mediation training and experience mediating a minimum of five cases. Early neutral evaluators must have been active in the practice of law for a minimum of 15 years and have substantial expertise in the subject matter of the cases assigned to them. Both mediators and evaluators are required to have the temperament and training to listen well and to facilitate communications across party lines, as well as the ability to assist the parties with settlement negotiations. The individual neutral determines rates for mediators and evaluators. Arbitrators, who are paid by the court, are required to have been admitted to the practice for a minimum of 10 years, have committed 50 percent or more of their practice for the last five years to litigation or have substantial experience in serving as a neutral. It is important to note that the list of neutrals is provided as a courtesy to litigants. There is, however, no requirement that the parities chose someone from the court’s list. If the parties agree on a neutral that is not on the list, they must simply provide that person’s name and information to the court at the Rule 16 conference and/or in the Rule 26(f) report so that an appropriate referral order can be entered. All civil actions filed with the four pilot judges are presumed to be part of the ADR process, with the exception of social security appeals and prisoner civil rights cases. Exemptions are granted on a case-by-case basis by a showing of good cause to the judge at the case management conference and/or by motion. Thus far, there have been 20 cases exempted from the process, across a variety of case types. Types of exempted cases were ERISA, bankruptcy, interpleader, personal injury, tax, withdrawl of reference, ADA, civil rights, contract and exoneration/limitation of liability cases. To date, 696 cases have participated in the ADR pilot. Of these, 446 have closed, 327 resolved before the initial case management conference, and 72 settled after the ADR conference. An additional 47 settled after a court order referring the case to an ADR process but without the filing of a neutral report. Therefore, there is no ability to track whether the ADR process actually took place. Ninety-three cases remain pending, and 73 different neutrals have been utilized, of the total 250 available. What does this all mean? The court believes that the statistics show the program is working. Nationwide statistics indicate that 98.2 percent of all cases filed in federal courts do not go to verdict. In the Western District, this number is 97.5 percent. The Western District’s ADR program shifts this paradigm away from the courthouse steps, leading to an earlier – and presumably fairer and less expensive – resolution. It is the court’s hope that this will result in happier litigants and, therefore, happier clients. Undoubtedly, if a case is resolved through this process, it offers the litigants more control over their disputes and the eventual resolutions. The court is continuing to evaluate the program and sincerely wants feedback, either via the evaluation forms for those who have participated, or via e-mails to the ADR coordinator at [email protected]. The policies and procedures, posted on the court’s Web site, are open to revision, and comments and suggestions on these are greatly appreciated as well. The court has been engaged in an outreach to the legal community, speaking to groups of neutrals, various organizations within the bar, frequent users of the program and individual firms. KAREN ENGRO is the alternative dispute resolution coordinator for the U.S. District Court for the Western District of Pennsylvania, as well as the executive director of the Judicial Council for the Supreme Court of Pennsylvania. LISA PUPO LENIHAN is a magistrate judge for the U.S. District Court for the Western District of Pennsylvania.

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