By Order dated November 28, 2018, Chief Judge Joy Flowers Conti approved amendments to the Court’s Alternative Dispute Resolution Policies and Procedures. The amendments, which become effective on January 2, 2019, relate to mediations and early neutral evaluations (ENEs) conducted pursuant to the Court’s ADR program.
The amendments are subtle but noteworthy. The first set of changes are to Sections 3.1 and 3.8 of the Policies and Procedures and recognize the ability of mediators to employ an evaluative approach in conducting a mediation. The existing ADR Policies & Procedures require mediators to use a facilitative, rather than evaluative, approach. The amendments provide that although mediations will presumptively be facilitative, the mediator should be prepared to provide “evaluative assessments” if requested by all parties. This additional flexibility in structuring mediations should be helpful in resolving cases, as an evaluative approach, used properly and judiciously, can be an extremely effective tool for mediators to use in assisting the parties and their counsel to recognize the risks of the positions they are taking. Mediators who employ an evaluative approach in a case need to thoroughly prepared for the mediation and have an understanding of the factual and legal issues involved in the case in order to provide a meaningful evaluative assessment. It will be advisable for mediators and counsel to discuss, during the pre-mediation conference call held in advance of a mediation, whether the parties and counsel desire that the mediator to employ an evaluative approach if the mediator believes that using such an approach would enhance settlement possibilities.
The second set of amendments provides the Court with additional flexibility in connection with the timing and scheduling of mediations and ENEs. Section 3.4 of the Court’s ADR Policies and Procedures provides that the deadline for conducting a mediation, unless otherwise ordered by the Court, is sixty days following the Rule 16 initial scheduling conference. This provision is retained, but the amendments add the following sentence: “This is a presumptive timeline for the ADR proceeding, subject to adjustment by the Court to meet the needs of the case.” Section 4.4 of the Policies and Procedures, which relates to the timing and scheduling of ENEs, is similarly amended. These amendments should enhance the overall effectiveness of the Court’s ADR Program, as they recognize that the timing of an ADR session can be a very important factor in determining whether the ADR is successful and that the Judges can adjust the sixty-day deadline where doing so might contribute to the prospects of settlement.