Thanks to Perry Itkin’s Florida Mediator for linking to this Memorandum Opinion enforcing, by way of contempt proceeding, a mediation confidentiality order entered by a federal magistrate in the District of Columbia in January of this year.
We were just discussing this issue at the yearly Settlement Officer (my own S.O. profile here) "brown bag" lunch meeting with Judge Morrow of the U.S. District Court in the Central District of California. Some of those present were concerned of the the confusion that might be caused to counsel by the unsettled state of the law of mediation confidentiality in federal practice and by the Court’s own "Procedures for Implementing Settlement Options," re-printed below. Notice that the Court’s procedures use the terms "mediation type settlement proceedings," settlement "procedures," and, "settlement conferences" without defining any of them.
Federal counsel should note, however, the District Court’s Local Rule 16-15.8
Confidentiality of Proceedings . All settlement proceedings shall be confidential. No part of a settlement proceeding shall be reported, or otherwise recorded, without the consent of the parties, except for any memorialization of a settlement and the Clerk’s minutes of the proceeding.
For further insight into confidentiality in federal courts, see Deason, Ellen E., "Predictable Mediation Confidentiality in the U.S. Federal System," Ohio State Journal on Dispute Resolution, Vol. 17, No. 2, 2002 and local federal settlement officer Phyllis Pollack’s post, Mediation Confidentiality: Does it Exist in Federal Court? discussing Babasa v. LensCrafters, Inc. (Case No. 07-55880).
Procedures for Implementing Settlement Options below:
In every civil case, the parties, unless exempted by the trial judge, shall participate in one of the settlement procedures set forth in Local Rule 16-15 or as otherwise approved by the trial judge. No later than 45 days before the final Local Rule 16 pre-trial conference, the parties shall select and participate in one of the suggested settlement procedures as set forth in Local Rule 16-15 or as otherwise approved by the trial judge. Except as otherwise ordered by the Court, a Notice and Request of Settlement Procedure Selection (ADR-1), signed by counsel for both sides, shall be filed not later than 14 days after entry of the schduling order under F.R.Civ.P. 16 (b).
If Settlement Procedure No. 1 (Local Rule 16-15.4) is selected: If the assigned district judge is to conduct the settlement procedure, the parties must contact that district judge’s courtroom deputy and arrange a date and time for the settlement conference. The courtroom deputy will calendar the matter accordingly. If the assigned discovery magistrate judge is to conduct the settlement conference, the courtroom deputy shall refer the matter for settlement conference to that assigned magistrate judge. The magistrate judge’s courtroom deputy will calendar the matter accordingly. Further questions regarding this option may be referred to the courtroom deputy for the assigned district judge or assigned discovery magistrate judge, as appropriate.
If Settlement Procedure No. 2 (Local Rule 16-15.4) is selected: The parties must access the Attorney Settlement Officer Panel List available from the website. There are two panel lists on the website, one alphabetical and the other by area of law. The website also contains personal profiles of those panel members who voluntarily provided such information. The Attorney Settlement Officer Panel List is updated periodically by the Panel Coordinator. If the parties do not have the ability to access the website, the parties may contact the courtroom deputy to the assigned judge for the case. The courtroom deputy will make a photocopy of the appropriate section of the list that relates to the type of case that the parties are litigating and fax or mail that appropriate section to the requesting party. The parties shall then make a selection from the list, obtain consent from the Attorney Settlement Officer selected and file a Stipulation Regarding Selection of Attorney Settlement Officer (ADR-2).
The parties and the Attorney Settlement Officer shall arrange for an agreed upon date, time and place for a settlement conference and shall so notify the Panel Coordinator. If the parties cannot agree on an appropriate Attorney Settlement Officer from the list, they shall submit the ADR-2 requesting a random assignment of an Attorney Settlement Officer. The Panel Coordinator will perform the random assignment of an Attorney Settlement Officer from the particular area of law designated on the ADR-2 and will notify the parties by mail of the selection. Within five days after the conclusion of the settlement proceeding, the Attorney Settlement Officer shall file with the court and serve the parties and the Panel Coordinator an Attorney Settlement Officer Proceeding Report (ADR-3). Further questions regarding the Attorney Settlement Officer Panel may be referred to Dawn Osborne-Adams, Attorney Settlement Officer Panel Coordinator, at 213-894-1215.
If Settlement Procedure No. 3 (Local Rule 16-15.4) is selected: The parties shall appear before a retired judicial officer or other private or non-profit dispute resolution body for mediation-type settlement proceedings. The parties shall make any necessary arrangements in this regard and should file a notice with the court naming the person who will conduct the settlement conference and indicating the date set for the settlement conference.
If a "Notice to Parties of ADR Pilot Program" has been issued: Along with the Notice provided to plaintiff’s counsel at the time of the filing of the complaint, plaintiff’s counsel (or defense counsel if a removal case) will also be given an "ADR Pilot Program Questionnaire." This Questionnaire is to be completed jointly by the parties and filed concurrently with the report required under Federal Rules of Civil Procedure 26(f). After reviewing the Questionnaire, if the judge assigned to the case determines that the case is suitable for referral to the program the parties will receive an "Order/Referral to ADR Pilot Program." For further information on the program, please see General Order 07-01 which is available on the Court’s website.
From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.The One Hundred Eleventh United States Congress began on January 3, 2009 and will last till January 3, 2011....By Victoria VanBuren