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FREQUENTLY ASKED QUESTIONS ABOUT THE ADR PROGRAM

What rules govern the ADR Program?
DUCivR 16-2 and the ADR Plan govern the ADR Program.

How do I get my case into an ADR process?
Parties may request arbitration or mediation by filing a Certificate of Selection of Dispute Resolution or a Stipulated Motion of Referral to ADR along with a proposed order. The assigned judge may also order a case into mediation on the judge's own motion.

What is the Certificate of Selection of Dispute Resolution and who submits it?
The Certificate of Selection of Dispute Resolution certifies that counsel has discussed the ADR Program with the client and indicates which dispute resolution process the client prefers. All counsel in any civil case eligible to participate in ADR must complete and file a Certificate at least ten days before the initial scheduling conference in the case. See DUCivR 16-2(d). A party may change its choice of dispute resolution process by filing a subsequent Certificate. Counsel in bankruptcy adversary proceedings do not need to file a Certificate. Instead, parties discuss the mediation option at the initial scheduling conference before the assigned bankruptcy judge.

When can I get my case into an ADR process?
A case may be referred to ADR at any time.

How do I opt out of participation in the ADR Program?
A party may opt out of the ADR Program by filing a written notice of withdrawal with the Clerk of Court within 20 days of the entry of the order of referral. After the 20-day period, a party must move the court to withdraw.

What litigation deadlines are affected by an order referring a case to ADR?
The formal discovery process is stayed by an order referring a case to ADR pursuant to DUCivR 16-2(f). Parties may stipulate to conduct some discovery even after the case is referred. Unless otherwise ordered by the assigned judge, all other pretrial deadlines or hearings remain in effect.

When is the best time to use ADR?
While ADR may be used at any time, to maximize cost savings, parties should consider using ADR early in the lawsuit before full-blown discovery has negated any potential cost savings. However, parties should have enough knowledge about the case to assess its value and analyze its strengths and weaknesses.

How might ADR be better than the parties meeting on their own?
Often, direct settlement negotiations do not begin until later in the lawsuit. ADR usually occurs early in the lawsuit causing parties to complete their initial fact finding and evaluation work early. A third party neutral may also improve case management by helping the parties focus and narrow the issues or assist them to communicate views or proposals in more productive terms.

Won't I risk giving away my trial strategy in ADR?
The majority of civil cases are resolved by a settlement agreement. Only about 2% go to trial. If parties fail to raise their best arguments in settlement discussions, they may lose the opportunity to achieve the best result for their side. Parties do not need to reveal sensitive trial strategies in ADR. However, an ADR process, like mediation, may help a party exchange key information with the other side leading to a quick and more advantageous settlement agreement.

What costs are required to participate in the ADR Program?
Court appointed arbitrators and mediators collect $100.00 for each hour spent in an ADR hearing or conference. Unless the parties agree otherwise, the compensation fee is split evenly between the parties. Parties who are unable to pay their portion of the compensation fee may motion the court to waive their portion of the fee.

Who conducts the ADR proceedings?
Parties may choose an arbitrator or mediator from the court-appointed ADR panel of arbitrators and mediators. All members of the ADR panel are well-qualified attorneys who have been admitted to practice law for a minimum of ten years and who have experience and training in arbitration, mediation or both. If the parties prefer an arbitrator or mediator who is not on the ADR panel and may or may not meet the panel qualifications, parties may ask the court to appoint the neutral to their case.

What should I consider when selecting an arbitrator or mediator?
Parties should think about what they need from a neutral to resolve the dispute. Once the parties determine what they want out of ADR , they can look for those qualities in a neutral. For example, how important it is to have a neutral with substantive knowledge about the field. Subject matter expertise may be more important in arbitration or in mediation cases involving issues such as trade secrets or constructions. However, in many mediation cases, communication skills may be more important than subject matter expertise.

Parties should also consider what dispute resolution style will help resolve their dispute. In arbitration, parties may want a flexible arbitrator or they may need a strong case manager who keeps the parties on a tight reign. In mediation, parties should consider whether they want a mediator whose approach is more "evaluative" or more "facilitative". A facilitative mediator may tend not to make substantive suggestions and try to promote active problem-solving from the parties whereas an evaluative mediator might suggest resolution options and try to convince the parties to adopt their proposed solutions. Most mediators use a style that is somewhere between a pure facilitative and a pure evaluative style. Parties may also want to know if a mediator prefers to meet with the disputants together or separately.

How much time do ADR proceedings require?
Arbitration pre-hearing conferences, which are similar to final pretrial conferences, generally last an hour while the arbitration hearing is normally completed in a day. Overall, the arbitration process can be completed in two to six months. A mediation conference typically last about four to eight hours depending on the complexity of the issues and the number of parties. Some cases may need multiple mediation conferences. The mediation conference usually occurs a month or two after the case is referred.

How can I obtain more information about the court's ADR Program?
The court's web site at www.utd.uscourts.gov contains information about the court's ADR Program, including the local rule governing ADR and the ADR Plan, sample ADR forms and the court's rosters of arbitrators and mediators. Parties may also contact the ADR Coordinator at 801-524-6121.