Various federal courts have been utilizing some form of ADR processes at least since the 1970s. However, the use of alternative disputes resolution in federal courts was largely sporadic until the 1990s. Beginning with the Civil Justice Reform Act (1990), district courts were required to develop plans for reducing costs and delays. This was followed by the Alternative Dispute Resolution Act (1998) that ultimately required all federal district courts to authorize and promote the use of alternative dispute resolution programs.
The ADRA applies to all civil actions in federal district courts including adversary proceedings in bankruptcy. Read on to learn more about the ADRA and current ADR practice in Federal Courts.
What Does the ADRA Require?
The Alternative Dispute Resolution Act, or ADRA, requires federal district courts to implement local rules authorizing the use of alternative dispute resolution processes, such as:
- Early neutral evaluation
Each district court is still able to create and implement its own program, although the ADRA mandates that the courts provide at least one form of ADR process to litigants. District courts must also require civil litigants to consider the use of an ADR process and, under the ADRA, the courts can actually require parties to use a non-binding process such as early neutral evaluation or mediation. However, the courts cannot require the parties to settle or to use binding ADR mechanisms like arbitration, which require the consent of all parties. In practice, many district courts also utilize settlement conferences in which a magistrate judge will typically facilitate negotiations between the parties to settle all or part of a dispute. Rule 16 of the Federal Rules of Civil Procedure allows district courts to order parties to appear for one or more of these settlement conferences before trial.
The ADRA also allows each district court to exempt specific cases or categories in which ADR would not be appropriate. Each court must also adopt appropriate processes for the selection of neutrals to administer their ADR programs and for making these neutrals available to the parties. Thelocal rules for the northern district of California, for example, create a standing panel of neutrals to serve in the court's ADR programs. The panel consists of qualifying lawyers who receive regular training on ADR processes and who can serve for renewable 4-year terms.
Just over a decade after ADRA was passed, asurvey of district courts showed that 36% offered multiple forms of ADR. That survey also showed that where district courts only offered one form of ADR, the minimum required by the ADRA, most courts relied on mediation. The increasing requirement and availability of ADR in federal courts also appears to coincide with an ever-increasing trend of cases resolving before trial.
With what appears to be a trend toward alternative methods of dispute resolution, you will likely find yourself representing litigants in ADR processes or even as an ADR practitioner yourself. Because of this, you should be aware of the applicable professional responsibility rules in your jurisdiction as well as the ABA'sModel Standards of Conduct for Mediators. These model standards, among other things, address obligations relating to:
- The principle of self-determination
- Conflicts of interest
- Quality of the process
- Mediation fees/charges
- The obligation to advance the mediation practice
The ADR section of the ABA also offers an onlinedispute resolution resource database containing relevant articles and ABA resolutions relating to dispute resolution and the model standards. The ABA also maintains a clearinghouse for mediator ethics opinions in the various jurisdictions to help clarify the rules where you practice. In addition, the ABA provides aresource toolkit, including talking point presentations, handouts, and helpful videos that can be used to educate the public about mediation and dispute resolution processes. There are also private organizations such as theAmerican Arbitration Association and JAMS, which contain helpful resources for litigators.