 You're watching FJTN, the Federal Judicial Television Network. Live from the Judiciary's telegenic studio in Washington, D.C., the Federal Judicial Center presents the ADR Act of 1998, what it means for the courts. I'm John Cook, Director of Judicial Education here at the Federal Judicial Center. Welcome to this Federal Judicial Television Network broadcast on the Alternative Dispute Resolution Act of 1998, which was signed last October. In this broadcast, we'll identify some of the main features of the Act, describe some of the issues that it raises, and discuss how courts can implement the Act. Before we begin, a couple of administrative reminders. First, today, February 4, 1999, we're broadcasting live. We invite you to fax your questions to us during the broadcast at the number shown on your screen, 202-502-4277. Some of you may have received a form for faxing questions. Because the center's numbers have recently changed, the number on that form may not be the one shown on your screen. Please use the number on the screen. If you have a question but you don't have a form, please don't let that stop you. Fax your question to us on a plain sheet of paper. We'll try to get to as many of your questions as we can during this broadcast. Second, it's very important to us to know how many judges, court staff, and attorneys are watching the program and how useful it is to you. Someone at your site should be taking attendance. If no one seems to be doing this, please ensure that someone there gathers attendance and faxes it to us at the same number I just gave you. Also, it's very important to us to get your substantive comments on the program. Again, a site coordinator should have evaluation forms for you to fill out. If you don't have a form there, the form can be found on the JNET at the address shown on your screen now. If you don't have an evaluation form, we'd still appreciate your comments in the form of a letter to me, faxed or mailed to the center. Your comments are very important to us to help plan future FJTN broadcasts and additional training on the ADR Act. One further note, should you have any technical difficulties with the transmission today, please call GE SpaceNet at the number now shown on your screen. They're ready to help. Now I'm pleased to introduce our two speakers today. Judge Gladys Kessler of the District of Columbia and Judge James Rosenbaum of the District of Minnesota. Judge Kessler has considerable experience with ADR programs both as a judge on the D.C. Superior Court where she previously sat and on the District Court. The District of Minnesota where Judge Rosenbaum sits has considered but has not adopted a formal ADR program and now must determine what it must do to comply with the Act. Judge Rosenbaum. Thank you, John. As you can tell, we have a limited number of minutes and this is an extensive Act raising a number of questions. Now we are obviously not going to be able to answer all of them but we are going to touch on a number of those questions and try and point out to you the resources at the AO and the FJC who can help you provide additional information. Let me tell you also that the Act relates both to those courts which already have ADR programs and those which do not and we're going to try and discuss the relations to each. Let me also say that while the Act has a number of requirements this Act is designed to provide flexibility. It is not programmatic. It is designed to set up a program but that program will be designed to be compliant with your own court's needs. There are a number of provisions and because of time limitations let me try and set aside one issue and that deals mostly with arbitration. The two most important matters relating to arbitration are a number of courts, 20 in fact, which had previously been authorized by statute to set up either mandatory or permissive arbitration programs. Now they will be permitted to keep and maintain their programs but the other parts of the Act do relate to them. Second, any other court that wants to set up an arbitration program by the explicit terms of the Act can only refer cases to arbitration with the consent of the parties. Now Judge Kessler and I will briefly outline the central requirements of the Act and then some of the issues that we think that they raise but this summary will necessarily be somewhat general so we'll have additional time for your questions and here let me remind you again if you have questions please fax them to us. We have a limited period of time but if you send in a fax we'll get it and we'll try as best we can to answer the questions that you raise. I think you probably already know that Congress has been interested for a good length of time in ADR programs. After this bill was introduced the Judicial Conference, along with congressional staff and the Department of Justice worked to try and frame acceptable language to the courts. The Judicial Conference neither opposed nor did it endorse this bill but it does have a long-term record of support of ADR at least in general. The ADR program was referred to in the long-range plan which was adopted in second in the 1997 CJRA Report to Congress the judiciary stated the conference supports continued use of appropriate forms of ADR as is recognized in the long-range plan. The Judicial Conference recommends that local districts continue to develop suitable ADR programs. This act is designed to implement that and I'll call on Judge Kessler. Thank you. Good afternoon ladies and gentlemen. The act is explicit in directing courts to write local rules on a number of matters. If you already have an existing program and that program is not embodied in local rules then you're going to have to do that. The act does however preserve the primacy of the statutorily authorized rule-making process. These are the seven issues that must be covered by the local rules that you will be adopting. Your local rules must provide authorization for the use of ADR, implementation of an ADR program. The local rules must contain a requirement that the litigants at least consider using ADR. Your local rules must ensure confidentiality and those local rules will prevail at least until such time as national rules are issued and right now there are no such national rules in process. Your local rules also have to establish standards for the disqualification of neutrals and once again your local rules will prevail until national ones are issued. There are two final requirements for your local rules. You have to assure that arbitration if you provide for it in your program is by consent only and you have to provide for the sealing of any arbitration award that is rendered. We're going to talk about the first five of these requirements. Although the act doesn't specifically require that any other provisions of your program be incorporated into the local rules, it's really good public policy to make your ADR procedures and requirements known through the local rules. It will help your bar in terms of getting used to what may be a new program and it will certainly help your pro se litigants. Let me focus with you then on the act's most basic requirements. As you can see, each district court is required by local rule to authorize the use of ADR in all civil actions, including adversary proceedings in bankruptcy to devise and implement its own ADR program and the district courts are required to provide litigants with at least one ADR process. This might suggest a number of questions. Let me direct myself to bankruptcy courts. Frankly, the statute is not entirely clear on this issue. The act refers to the bankruptcy court's adversary proceedings. All other areas in the act refer directly to the district courts. It probably, and we believe it would be a reasonable reading, to suggest that it simply refers to those cases where the order of reference has been withdrawn and the matter will be considered in the district court. Now, nearly all of the other provisions apply only to the district courts by their terms. The correlative of that, however, is that it does not prohibit bankruptcy courts from adopting ADR programs and in fact, apparently, almost a third of them have already done so even in the absence of the act's authority. Judge? I'm sure one of your first questions probably is whether the statute sets a deadline for meeting its requirements. It does not, and in the absence of a statutory deadline, the date of enactment is considered the date for compliance with the statute. Now, many courts already have ADR programs and therefore are in compliance with the basic requirements of the statute. Any court that is in the process of devising and implementing, and that's the statutory term, but if you're in the process of devising and implementing a program, then you too are in compliance. Courts that already have an ADR program may assume that the act doesn't apply to them, but that is not the case. The act requires those courts with existing programs to periodically examine their effectiveness and to make sure that they comply with the various requirements set forth in the statute. And I do want to add that the statute doesn't spell out any requirements as to exactly how you shouldn't go about that periodic examination. It doesn't tell you what methodology to use, it doesn't tell you how often you have to evaluate your program. These are matters for the discretion of local district courts. Remember, whatever type of ADR program you establish, the act requires only one such process. It could be mediation, it could be voluntary arbitration, it could be early neutral evaluation or many trials, but one process only is required to be established under the statute. In short, the act leaves each district court considerable discretion. You should use an ADR process and establish a program that meets the needs of your local docket, of your litigants, and of your bar. Now I'd like to focus with you on the provisions in the act as they relate to specific cases. The act by its terms first says it applies to all cases, but then it specifically exempts, as you can see, specific cases or categories of cases. The court in that regard must consult with the bar, including the U.S. Attorney's Office. The court, of course, can also consult with their local CJRA Committee or civil advisory panels. Court may decide to require the use of ADR but only with respect to mediation and early neutral evaluation. And they must, again by local rule, require litigants in all civil cases to consider using ADR. I always wonder how you're supposed to implement what it means to consider. I can imagine sending a martial out saying you have to consider. But I'll set that aside because it's statutory language. Now there are two areas that should be noted immediately. First, there is a requirement that the courts consult with the bar and the U.S. Attorney's Office and the Department of Justice has already been in touch with the U.S. Attorneys to discuss them of their support and compliance with the Act. Second, as I previously pointed out, the only provision for mandatory referral is either to mediation or to early neutral evaluation sometimes called ENE. Now once again, those 10 courts which previously had been authorized by statute to require arbitration may continue to proceed as they have in the past. If anybody has wondered in the past whether the judges have the authority to order parties to use ADR, this act dispels any of those doubts. It clearly authorizes us to require the litigants to use alternative dispute resolution. Now whether to require the parties to use ADR and if you do require it at what point you make those referrals are two of the most basic decisions that you're going to have to make in designing your own ADR program. But mandatory and voluntary referrals are not absolutes. There are really two ends of a spectrum that encompasses varying degrees of compulsion and voluntariness and we can talk a lot more about these choices and their implications when the questions come in during our question and answer period. A matter that is beyond our choice though is the statutory requirement that courts require litigants to consider ADR just noted that is not an easy requirement to satisfy. However, it is one of the requirements that you must incorporate into your local rules and the statute's clear on that. But again it only requires that litigants consider using ADR, not that they actually use it. A practical question for all of you is whether there's an efficient and a meaningful way to prompt parties to consider ADR and for the court to determine if they complied with that requirement. Some avenues that you might consider depending upon your own court rules and processes is a requirement at your initial scheduling conference that the parties certify that they've considered ADR. You might use your Rule 16 conferences for this purpose or if you require case management statements then you might certainly include this particular subject matter in your case management statements. Let me remind everyone please to fax in your questions. We'll be completing our prepared remarks fairly shortly and we do want to turn promptly to your questions and your particular concerns. Judge, now let me turn to an additional requirement regarding the ADR process in individual cases. As you can see on the screen each district court must by local rule provide for the confidentiality of the ADR processes prohibit disclosure of confidential ADR communications. Here's another area where the local rule will govern unless or until national rules are promulgated under the Rules Enabling Act. I should make it clear in almost every one of those cases there is nothing presently being considered under the national rules. Now there are no present plans even to promulgate them. I'm sure that they'll be taken up in the future but your local rules are going to govern the process. Confidentiality is one of the most important elements of the ADR process. You should be aware that the federal rules of evidence in their Rules 403 and 408 which do deal with the issue provide rather limited protection for ADR communications. If you want stronger protection in your program then you have to consider some other approaches. First and foremost you need to consider exactly what you want to protect. Will your rule, for example, will it cover ex-party communications during the mediation process? Do you want it to cover all information exchanged during the ADR process unless it's otherwise discoverable? You also have to decide what the neutral may appropriately report back to the court. In other words, how much should or may the assigned judge know about what's happening in the ADR process? The neutral certainly can be allowed to report back the status if a case is settled. Obviously that's pretty straightforward although I suspect most of your lawyers are going to want to report back to you on that issue. Judges often want a lot more information than that, however, and you have to be careful about not compromising either yourself or the neutral by asking about the case or by permitting the neutral to speak to you about it unless you can certainly provide for in your local rules. You can provide that the parties consent to the neutral speaking with you or your local rule may provide further exceptions for reporting back by either the parties or the neutral during the mediation process or any other ADR process. It is obvious that the neutrals are going to be an essential part of this program and we could clearly spend an entire day on ADR neutrals but the court under the statute again is required to adopt appropriate processes for making qualified neutrals available. I should note that the act also states that the court may use among others magistrate judges who are suitably trained in ADR and they can function as neutrals but a court in its own discretion and depending on the local practice may choose to select people from the bar, from the bar association listings from the private sector or from other communities. There is no restriction on that. Those neutrals are going to be a very important part of your program and a good deal of the court's effort and a good deal of the court's practice will be engaged in making sure that they have the required training, the competence and the quality as is needed by the court in order to ensure the quality the statute says that you must adopt a process for making neutrals available but you do have a number of options. At the outset you'll want to consider whether to set up your own panel of neutrals in the court or whether you want to rely on an outside source and that outside source could be for example a state court's panel of neutrals or your bar association's panel of neutrals. Do keep in mind everyone that the greater the court's control over the panel, the more confidence both you as judges and your bar will have in that process and the greater your confidence the more leeway you're going to have on such matters as to whether to compel participation in ADR or whether to require the parties to compensate the neutral. There are a lot of important questions to consider when setting up a panel or when looking at a panel which has been established by some other entity such as your bar association or the state courts. We're going to discuss two of them now and again I hope we can come back to this subject during our question and answer period. One of the first and in some ways one of the most important of the questions is conflicts of interest as it relates to the neutral. Under the statute each district court must issue local rules on disqualification of its neutrals. This requirement includes as appropriate disqualification under 28 United States Code 455 basically the financial disclosure and conflict of interest statute other applicable law and your local professional responsibility standards. You're going to have to be concerned as the neutrals will be concerned about personal and law firm conflicts of interest which may arise as a result of service as a neutral. As with confidentiality this requirement again will apply under the local rules until national rules are promulgated under the rules enabling act and again there are no present plans to promulgate them. Your local rule will have to govern these issues for your court. You can see why this issue is of increasing concern to the courts and particularly to the bar. One of the key questions for those of us who are going to have to write the local rules is what standard to use to determine whether a neutral has a conflict of interest. For arbitrators the answer is very easy because the statute specifically requires the application of the standard contained in 28 USC 455 and we're all familiar with that and Judge Rosenbaum has just explained it. However the statute is silent about what standard to use for all other neutrals. There is some case law developing in this area as there is on the question of confidentiality. You can find a list of cases in two ways. You can take a look at the JNET at the address which is now shown on your screen and you can also look at the list of resources that's contained in Judge Sobell's January 29th memorandum to chief district and bankruptcy judges, clerks and ADR administrators. Compensation of neutrals is going to be of interest to you and it will certainly be of interest to your neutrals. The statute again provides that each district court must establish the amount of compensation if any that each arbitrator or neutral will receive. A district court may also reimburse arbitrators and neutrals for actual transportation expenses. Here again each court is permitted to establish and make its own decision about whether and how neutrals are to be compensated but that will be subject to judicial conference regulations. Now this is an area where there is beginning to be some conference work and that can be expected but at this present time there is none in place. I should also tell you as a matter of fact that as I understand even in those courts which have aggressive and active ADR programs so far none pays its neutrals. The courts are permitted but they are not required to pay neutrals a travel allowance. Now that is subject to administrative office requirements. This is also under discussion and regulations are expected to be issued as soon as possible. They are not in place at this time. Let me also tell you before moving on that again those 20 courts which already have required arbitration programs or available arbitration programs their systems for compensating their neutrals remain as they had been prior to the enactment. Now another area that we ought to touch on is administration of this program and here again the statute speaks. Each district court must designate an employee or judicial officer knowledgeable about ADR to implement, administer, oversee and evaluate the ADR program. Here according to the act the program's administrators may include recruiting, screening and training or qualification of those attorneys or additional people who may serve as neutrals. Judge? A threshold question for the courts is whether a judge or a staff member should manage your ADR program. Again this is not an either or question and indeed the ideal answer is really both. If you have a staff administrator it is certainly preferable to be able to have a judge who will provide oversight, will serve as liaison and will be the chief communicator with the other judges on your bench. This is a statutory requirement. This question like so many other issues that are raised in the act is really left to local courts to make their own decisions as to what is best in their discretion for their own individual court system. Finally I am sure at this point you all want to know whether there is additional funding available to the courts to support the ADR staff that is necessary to make a program work. The bad news is that even though Congress authorized funding there are no appropriations for additional ADR support staff. There are existing formulas though for determining the number of staff allocated to courts including staff to support ADR functions. The clerks of your court are going to be the ones who are most familiar with this formula and most familiar with the process for obtaining additional staff if it's at all possible. To them and work with them to make sure that your formula is calculated in a manner that will best benefit your particular court. Before we take questions ladies and gentlemen and again I urge you to fax them in as quickly as you can. Let me tell you a little bit about the resources that are available to assist you. First you can talk with other federal courts and the book that you are going to see on your screen in a minute the ADR source book to identify those federal courts which have already put in place some kind of an ADR program. You can talk with your state or local courts and once again many of the state and local courts have developed fairly sophisticated programs and they will give you the benefit of their experience in doing that. You can certainly confer with your local universities for assistance in evaluating your ADR program. Again as I mentioned that's an area where you have a lot of discretion and flexibility. And finally of course you can consult with your bar. The center itself is planning several additional programs on ADR at the chief judges meeting in May at the district judge meetings that are going to be held this summer in several different places at a conference for ADR administrators and then depending upon the response that we get to this program if it is necessary to have future broadcasts and selected topics of ADR the center will certainly be glad to organize those and to put those on. You can also go to the address on your screen now to get a copy of the act itself or a summary of the act and a list of resources which includes publications and cases. Finally you can call the center or the administrative office both are authorized under the statute to provide assistance to U.S. district courts. At the center please call Donna Steenstra and at the administrative office please call Mark Miskovsky. And now we'll open the discussion to questions. Again please fax them in to the number that's on the screen. We've already received one fax directly. I'm happy to say although I suspect we've gotten more than one. And so let me start with the first question to my esteemed colleague. It's a good question. The court orders mediation through its ADR program. Is it permissible for the court to order that each of the parties contribute a small administrative fee? And this question suggests $25 to be paid directly to the court-appointed mediator. What do you think? I think the answer is is that it's permissible. It'll have to be authorized by your rule. There is a provision for compensation that suggests that you cannot pay them out of unappropriated funds or the library funds which a number of courts might have. But it is one of the possible mechanisms and I guess I'm confident that the court will consider also whether or not we're dealing here with somebody who can even pay that amount of money. But within those confines I think it's permitted. I would agree with that. Now let me ask you from our court standpoint I know your court has been very active in ADR and our court has not. That having been said we use our magistrate judges as settling agents in final pre-trials or in final settlement conferences. Does that comply with the ADR statute as you understand it? And many, many district courts use their magistrate judges in precisely that capacity. There isn't any specific language in the statute regarding settlement conferences. The act specifies only that ADR includes any process or procedure other than adjudication by a presiding judge in which a neutral third party participates to assist in resolution of the case. So I think that technically the requirements of the statute are met by the use of magistrate judges in settlement conferences. But having said that I'd just like to go on and point out another section of the statute is the section 653 actually which explicitly authorizes the use of magistrate judges. And the statute says that the district court may use magistrate judges who have been trained to serve as neutrals in ADR processes. I would simply caution that that training is really essential. Magistrate judges like Article 3 judges have been trained to adjudicate. That is a very different skill involved in helping to facilitate a resolution. And I think the statute purposely used those words trained to serve as neutrals in ADR processes. Am I hearing the sound, however, of an advocate rather than a statutory analyst here? Well, the sound of someone who reads a statute with the purpose and intent of Congress in mind. And for those who read it with simple compliance, the answer may be yes. I think so. I think they can do it. Now let me ask you, I should also tell you now we have received two other questions which basically ask the same thing and those came in by facts. Now let me offer another question that I think is also on everyone's mind and that is how does your court relatively again active court go about obtaining its panel of neutrals and how if at all do they train them? We're very fortunate in D.C., I want to say that. Our bar has been extremely supportive of ADR from the very beginning. And we have worked very closely with the bar. We simply advertise whenever we have openings for a new training class for neutrals. We have more people sign up than we can ever accommodate. We have pretty stringent requirements. We do require 40 hours of training before they get certified to be neutrals and we even have some further in-service training after they're working with us. Does that training qualify for CLE or additional lawyer training credit? I believe it qualifies for Maryland and Virginia and we don't have too many who come in from Maryland and Virginia. In the District of Columbia we do not have mandatory CLA so it has proven to be an issue. So what we have is a totally court run program but I want to emphasize that's not the only option available to people. Certainly you can hire outside consultants for training. You can look to the bar association panels that exist. You can certainly look to your law schools because as you probably know law schools are doing more and more teaching and training and clinical work with ADR. So I think that again courts have significant options under the statute. There seems to be a distinction drawn in the act between ADR process and ADR program. I note that each court establish an ADR program but the process would you draw a distinction between them and do you draw a distinction between them? Well, the statute does and so therefore I will as any good statutory constructionist. I think what the statute means by process is the particular kind of ADR you're using whether it be voluntary arbitration or many trials neutral evaluation or mediation. I think what the statute means by program is that the court in its local rules is setting up a roadmap for how the program is going to operate and for when those processes will be used and how they will be put into place. And so the program is really a statement of the court's policies and procedures regarding ADR. I think that's the simple distinction. That's all. We're pleased to tell you that we're getting a number of questions coming in by facts. We are. There's still additional time to do so and we are eager to try and deal with the questions that you've got. So, you have a question? Yes, good questions too. She grades the questions. Well, they're challenging questions and I should say to the audience we may not be able to answer each and every one of them but the statute doesn't provide answers to everything. If a state court system already has in place mandatory ADR which has produced a large number of ADR providers in the private sector are district courts required to decide the fees that they meaning the private providers can charge? I think first of all it's obvious that they can adopt as part of their plan the use of the state-qualified neutrals. It will be necessary for the court to make an independent decision as to whether or not they will qualify as neutrals. That's the first part of the question which lay within it I think. The second is the compensation and I'm comfortable that under the statute in the absence of any national system qualification and compensation of the neutrals is provided for by the local rule and again there's nothing that's coming out of Washington that we're aware of so with that in mind I would say that they can in some ways annex the local plan and set their own system for compensation. By the way I should also note it's relatively common for local participants, for the individual lawyers to agree between themselves that they want to select someone and they may independently agree outside of the program that they will compensate that person. There are a number of people in almost every community that are well recognized for their competence in this area. In many commercial cases lawyers do agree to do that but I think it's an important decision for the individual district court to make as to whether they are going to provide compensation or not because one of the tough issues is if you do pay your neutrals what happens with your indigent parties? Are they shut out of ADR? I would suggest that they can't be shut out of it but how is the neutral going to be compensated and what sanctions are you going to impose? Let me give you another question that came from one of the viewers in your district and since your district is the one that has a program who appoints or assigns the mediators is it the judge or is it the parties or how is it decided in a default situation? Fundamentally it is the program administrator who appoints the neutrals. We have tried in recent years to divide our neutrals in terms of their expertise in certain areas so that we now... We have specially qualified neutrals. In particular for example we all have so many employment in Title VII cases so we have a whole panel of neutrals who are expert in that particular area we have a panel of I think two people who are expert in patent matters so that the administrator of the program does that. Can we only trust people? Can we bring them out to Minnesota? Well we should have so many trust people. I want to make one caveat to that though. The parties certainly can choose their own mediator at any time and they are welcome to do so. On occasion a judge will suggest either one or two or three mediators but make it very clear that the parties can have the staff person do it they can choose their own or they can go to the person Do you have another question there? Yes. Let me see. Let me offer this one for you for immediate use. Under the act there is a provision for the compulsory use of ADR in your view or do you have a view on whether or not it should be compulsory or whether it should be voluntary referral? I think as I said earlier that it really is a spectrum and it doesn't have to be an either or matter to the extent possible it is desirable that the parties agree for example to mediation if the court is strongly supporting it if the parties have good experiences with it I think you will find at let us say your initial scheduling conferences that most parties will agree to it. It may well be though that in a rare case a judge feels that it is so essential that the judge will order it or that it is so appropriate. I think that the final decision on whether to make it compulsory or not should be the judges to whom the case is assigned but paying a good deal of attention to what the lawyers say if they really object to having a case go to ADR. Here's a question that I suspect many people have and the person says I'm worried about selling this to the bar how are they going to react to the requirements of this act? Let me partially respond to it and then I'm probably going to go back and ask you the same question in the district of Minnesota and I know in a number of other districts which are not far away we've asked our bar association to consider for a good length of time whether or not they want to adopt a kind of a program we've had speakers come out and our CJRA panel has consistently said they were not interested in it and for some reason they either have not been satisfied with the plans or simply feel that the way the court handles it has been satisfactory they're obviously going to do what's required because if it's set up by local rule they will comply but what happened in the culture of your court that made it become if you will much more receptive? Again I have to give a vast amount of credit to our bar associations we have a number of bars a local chief judge was instrumental in working with the local bar in developing our programs we started very small we started with small programs that were successful and their success convinced the bar that ADR was really an extraordinarily effective mechanism for disposing of cases and so as we built upon each success the bar became more enthusiastic we involved them in everything and they were major participants and therefore I think major boosters of the program so that the legal culture in DC is really very different than what it sounds as if it is in your home state well it's one of those areas where we're both going to have to take a look and I'm going to have to see what happens we're going to take it up again with our bar and we'll see how they feel about it and our court will consider their views along with that of the Department of Justice now the preamble we're getting by the way a number of questions Judge Kessler and I have a number of skills not the least of which is we can try and respond but we can't invent them we're trying to avoid it one of the questions says the preamble to the act references the success and value of the appellate court settlement programs now those programs employ full time professional mediators our opening comments seem to presume that the courts would be voluntary or use some paid neutrals do you see the act permitting district courts to use in-house professionals and this approach would certain obvious conflict of interest questions so what thoughts do you have I think the statute clearly permits it doesn't require it but permits it and that I think is in large part going to be a function of funding those kinds of paid professionals on staff are highly skilled people they don't have any trouble getting a job in the private sector and so the question is whether Congress is going to follow through with money to implement the statutory requirements that it's placed upon us I think it's probably a fair reading of the statute that there is no bar to a court deciding to hire somebody but it would obviously be on the clerks staff and I don't hear a huge chorus of district court clerks announcing that they have surplus staff and surplus funds but they could theoretically reprogram funds and utilize those funds to hire such a person but as I said unless they're in districts far more efficient than ours I don't think there are people sitting around with spare slots available I think money is going to be the issue but clearly the statute would permit it I don't see any problem with that now one judge has faxed in a question saying I've heard some say that judges shouldn't appoint the neutral why not we appoint special masters what's different about an ADR neutral why shouldn't the judges do it? I think an ADR neutral probably if you're going to use that system would generally be most usefully taken off a panel or by agreement of the parties I think there's probably a perception that if the judge picks that neutral unless it's off of a very small list of people where the lawyers get a chance to make some selection there might be a sense that there's a particular relationship with the judge that might make it harder for them to participate fully in the ADR process and on that basis I think while we do recommend special masters under rule 53 we do that there where there's a particular service that's required to be provided either additional information that we need or some kind of governance of a difficult issue now one judge is in the enviable position of saying our court already moves cases along very quickly we're concerned that referring cases to ADR will only slow them down how do we comply with the statute while preserving our very effective process I think first of all the answer is there's probably no definite answer right now but I think probably as we discussed earlier there is a provision and you can comply with the ADR act by the use of your magistrate judges as trained neutrals if that is sort of annexed in as part of the rule 16 as an early neutral evaluation system I think you would be in compliance with the act and it shouldn't seriously encumber the path that a case files even in the rocket docket districts that's a guess but we're not quite in that position at home either believe me we are not either I can assure you now there's a question that did come in also let me ask this one for you the local rule in their court does now provide for mandatory arbitration in cases under $100,000 now the mandatory arbitration suggested by the way this is from one of the mandatory arbitration districts the new statute sets the number to $150,000 must they go through a rule amendment process as we do under a general order or under another and there we are taking a look at one of those courts that is an authorized court my reading of the statute is that even though their program remains in effect and is not in any way affected by the new statute detrimentally if you will they are still subject to many of the new requirements under the statute so my answer would be they are going to have to amend their local rules to have them reflect what is the change in their program I think probably the answer is with that the statute clearly overrules the local rule and setting that they will have to conform their local rule to the statute and I think that is probably what is going to likely happen once again we are not making definitive rulings we are taking questions as they are coming and I thank you they are coming and keep them coming we will not sit here all night but we will sit here for a while with you and we will try and take the questions as best we can answer them that is a question can you order parties to mediate and pay up to $1000 each per day for it meaning for the mediation how far can courts go in obtaining information about the specific mediation how confidential must the process be that is a lot of ground to cover that is a good double question so I will try and answer the first one first the question is can the parties mediate and the answer is I think that they can first again you will have to have an enabling rule in your ADR plan under your local rules secondly the requirement of payment I think that that can be required in the same way as you can require the parties to pay if the parties are able to afford it for special masters or any other service that is required I think understandably you have to consider the possibility of whether or not they are capable and whether a court of appeals would consider it but I think it is something that is available the parties can be required to pay the necessary expenses now that is not specifically provided for by the statute but it is clearly not barred then how far can they go in obtaining information about the specifics of mediation that reopens the very important and interesting question of just exactly how close is the contact between the court and the mediator to some extent I think that will probably vary between districts and the local culture will make a difference even though we don't have a court annexed system there are a number of people who are regularly used as mediators and one of them said people always have to respect me because they never know exactly how much we tell you and we never quite cover it but I think in this area that the reality is is that the possibility will exist that you can decide by rule or by agreement in an individual case that a neutral evaluator can provide information to the court now let me give you back another question once again one from one of the viewers will any special procedures be used to adopt local rules and regulations for implementation of the act how can courts have input into that process I'm not aware of any special procedures the statute simply says that each district court has to enact local rules I would think that you would follow whatever your local whatever your procedure is in your court for the adoption of local rules we have for example as I'm sure many people do a rules committee and that rules committee consults with the bar ultimately makes recommendations to our entire bench and then we vote the rules up or down but there's nothing in the statute that appears to interfere substantively with the manner in which local district courts enact their own rules for that court let me follow up a little bit if I can and first of all I agree with you second it's pretty clear that the statute is very strongly supportive of local rules so you have that in your back pocket besides but under the rules enabling act in general a court can set out its rules in consultation with the bar as is required then they promulgate them they distribute them they're required to be some kind of a comment period and then they're ultimately published as part of their local rules but I don't think it modifies any of those programs in any fashion there's nothing that says any modification in the rule making process is in place by the way I should tell everybody that the center has a number of compilations of local rules and they are certainly available for any viewer or any judge to read at any time you get started in the process of drafting your local rules and you want to take a look at what's out there and what other courts have done contact Donna Steenstra and I'm sure that she will send you any local rules you want or she may be able to point out particular rules in certain areas that are troubling you or that are particularly difficult in the same regard both you and I have been the happy recipient of about a six inch stack of deathless rules promulgated the assets are available and the resources are there and I think realistically they cover most of the kinds of things that we're all going to have to confront confidentiality I suspect is going to be one of the toughest issues for everyone confidentiality and conflicts of interest one of the areas that I've been concerned about is the possibility of obtaining neutrals from large law firms there is case law which suggests that if you serve as a neutral you are in a position of some kind of privity with that firm even when you're operating purely as a neutral and you can wind up with a conflict for later representation if somebody is in a large law firm that conflict may spread throughout the firm and that's a matter of concern in both directions if the firm has ever represented anybody that you may serve as a neutral you could obviously be barred from serving as a neutral and that's going to be an issue that's going to have to be taken up locally because it is covered by the local rules and the area of confidentiality I think one of the tough areas is whether a judge can know anything at all about the status not the substance mind you but the status of how a particular ADR process is proceeding I'll give the most concrete example in the world you've got a really tough summary judgment motion under advisement you know full well because you've ordered the parties into mediation that they're working very hard at it the parties have let the mediator tell you that they've met 14 times let us say and you sure would like to know are they one meeting away from settlement or is it highly unlikely it's going to happen you don't want to know any of the details of what's going on or any of the substance that is a very controversial issue because most mediators will take the best position that you as the judge should know absolutely nothing at all as the judge who's been in that position I take a somewhat different position and I'm sure our audience will have their own views now here's a question if I'm reading it right what will the local rule number be in conjunction with the federal rules of civil procedure I think it's one of those interesting questions of when the rubber meets the road where do you number this thing I think we'll take this one also as our last unless we get this one very quickly handled but I think that the statute provides that the local rules are to be related in conjunction with the national with the federal rules of civil procedure so I think it'll fall somewhere around rule 16 which is case management area but I think this will be an issue that a local court can probably handle let me just close with this question do magistrate judges need to recuse themselves once they have participated in ADR and I'm assuming that the questioner means an ADR process for that particular case if you've mediated a case do you need to then recuse yourself from handling any other matters regarding that case with a certain anguish I look over at the question which is a submitted question to the district of Minnesota which means I'm going to have to answer to whoever wrote this my guess is they probably will not depending on the provision in the local rules if you have a pure mediation system where a magistrate would sit in mediation of cases other than those on their calendar then you might well make a provision or make a rule where they would not be required to do so but as we've used our magistrates here as settlement masters if you will they have worked on the cases that they have handled from the time they were filed until the time they were cleared I think it will depend on how we shape the program in our own local court well just to prove to the viewers that we're not always on good terms I think I'll disagree I think again the statute doesn't address the issue at all so it's clearly up to each local court to make their decision in their local rules but as a policy matter I think it would be unwise if a magistrate judge had mediated a case, knew a great deal of confidential information and there was no settlement and then sat on for example discovery disputes that you referred to that magistrate judge but again that will be a decision for the individual district court fair is fair however it also reflects again the culture of the court I know in your court the magistrate judges do not have extensive pretrial experience and ours do from the filing until the case is ready to be ready to be tried with that I think we have actually filled up the time that's been allotted for us I have personally very much enjoyed both chatting with you and working on these questions and now let me turn it back to John Cook thank you judge in closing let me remind you and encourage you to send in your attendance and evaluation forms those are very important to us to help to serve you better in the future on behalf of all of us at the center I want to thank Judge Rosenbaum and Judge Kessler for their thoughtful participation in today's program and I want to thank you for your interest and your viewership have a good day