dispute resolution tools for high tech - texasbarcledispute resolution tools for high tech chapter 5...

Dispute Resolution Tools for High Tech

Honorable Suzanne CovingtonAustin, Texas

State Bar of TexasHigh Tech Litigation MegacourseOctober 18-19, 2001- San Antonio

Chapter 5

HONORABLE SUZANNE COVINGTON

EDUCATION:

5/74-12/77 University of Texas School of Law J.D., with Honors, 1977

9/68-5/72 University of Texas at Austin, Bachelor of Arts, Magna cum Laude,1972

1972 Phi Beta Kappa

LEGAL PROFESSION EXPERIENCE:

1/95-Present Judge, 201st District Court

12/90-12/94 District Court Master, Third Administrative Judicial Region, Texas

8/83-12/90 University of Texas School of Law, Children's Rights Clinic, Director

4/82-8/83 Legal Aid Society of Texas, Managing Attorney

11/79-6/81 Greater Boston Legal Services, Supervising Attorney, Divorce Section

11/78-8/79 DNA-People's legal Services, Inc. (Arizona), Staff Attorney

PROFESSIONAL ACTIVITIES AND RECOGNITIONS:

Highest ranked civil trial judge, 1999 Judicial Evaluation Poll, Travis County Bar

Association Master of the Bench, Robert W. Calvert Chapter, American Inns of Court

Texas Bar Foundation, Outstanding Law Journal Award, 1997

Texas Supreme Court Advisory Committee on Court-Ordered Mediation; 1997 – 1998

Frequent speaker and author, State Bar of Texas, University of Texas CLE Department,Travis County Bar Association.

Dispute Resolution Tools for High Tech Chapter 5

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TABLE OF CONTENTS

Page

Selections From The Texas Civil Practice & Remedies Code ...................................................................1

Excerpt From The ABA Model Rules Of Professional Conduct...............................................................9

Local Rules For The Federal District Courts In Texas..............................................................................9

Excerpts From: ADR And Settlement In The Federal District Courts:A Source Book For Judges And Lawyers ...................................................................................................25

Adoption Of The Lawyer’s Creed By The Federal District Courts Of Texas .........................................39

Order Appointing Special Master................................................................................................................40

Travis County Rules Of Civil Procedure Chapter 17 ................................................................................44


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Selected Chapters of the Civil Practice & Remedies Code

Chapter 151. Trial by Special Judge

§151.001 Referral by Agreement

On agreement of the parties, in civil or family law matters, the judge in whose court thecase is filed may order referral of the case as provided by this chapter and shall stayproceedings in his court pending the outcome of the trial. Any or all of the issues in thecases, whether an issue of fact or law, may be referred.

§151.002 Motion for Referral

Each party to the action must file in the court in which the case is filed a motion that:(1) requests the referral;(2) waives the party's right to trial by jury;(3) states the issues to be referred;(4) states the time and place agreed on by the parties for the trial; and(5) states the name of the special judge, the fact that the special judge has agreed to hear the case,and the fee the judge is to receive as agreed on by the parties.

§151.003 Qualifications of the Special Judge

The special judge must be a retired or former district, statutory county court, or appellate judgewho:(1) has served as a judge for at least four years in a district, statutory county court, or appellatecourt;(2) has developed substantial experience in his area of specialty;(3) has not been removed from office or resigned while under investigation for discipline orremoval; and(4) annually demonstrates that he has completed in the past calendar year at least five days ofcontinuing legal education in courses approved by the state bar or the supreme court.

§ 151.004. Referral Order Entered

An order of referral must specify the issue referred and the name of the special judge. An order ofreferral may designate the time and place for trial and the time for filing of the special judge'sreport. The clerk of the court shall send a copy of the order to the special judge.

§ 151.005. Procedure

Rules and statutes relating to procedure and evidence in district court apply to a trial under thischapter.

§ 151.006. Powers of Special Judge

(a) A special judge shall conduct the trial in the same manner as a court trying an issue without ajury.(b) While serving as a special judge, the judge has the powers of a district court judge except that


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he may not hold a person in contempt of court unless the person is a witness before him.

§ 151.007. Representation by Attorney

A party has the right to be represented by an attorney at the trial held as provided by this chapter.

§ 151.008. Court Reporter Required

To maintain a record of the proceedings at the hearing, the special judge shall provide a courtreporter who meets the qualifications prescribed by law for district court reporters.

§ 151.009. Fees and Costs

(a) The parties, in equal shares, shall pay:(1) the special judge's fee; and(2) all administrative costs, including the court reporter's fee, related to the trial.(b) A cost for a witness called by a party or any other cost related only to a single party's caseshall be paid by the party who incurred the cost.(c) The state or a unit of local government may not pay any costs related to a trial under thischapter.

§ 151.010. Restrictions

A trial under this chapter may not be held in a public courtroom, and a public employee may notbe involved in the trial during regular working hours.

§ 151.011. Special Judge's Verdict

The special judge's verdict must comply with the requirements for a verdict by the court. Theverdict stands as a verdict of the district court. Unless otherwise specified in an order of referral,the special judge shall submit the verdict not later than the 60th day after the day the trialadjourns.

§ 151.012. New Trial

If the special judge does not submit the verdict within the time period provided by Section151.011, the court may grant a new trial if:(1) a party files a motion requesting the new trial;(2) notice is given to all parties stating the time and place that a hearing will be held on themotion; and(3) the hearing is held.

§ 151.013. Right to Appeal

The right to appeal is preserved. An appeal is from the order of the district court as provided bythe Texas Rules of Civil Procedure.


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Chapter 152. Alternate Dispute Resolution

§ 152.001. Definition

In this chapter, "alternative dispute resolution system" means an informal forum in whichmediation, conciliation, or arbitration is used to resolve disputes among individuals, includingthose having an ongoing relationship such as relatives, neighbors, landlords and tenants,employees and employers, and merchants and consumers.

§ 152.002. Establishment

(a) The commissioners court of a county by order may establish an alternative dispute resolutionsystem for the peaceable and expeditious resolution of citizen disputes.(b) The commissioners court may do all necessary acts to make the alternative dispute resolutionsystem effective, including:(1) contracting with a private nonprofit corporation, a political subdivision, a public corporation,or a combination of these entities for the purpose of administering the system;(2) making reasonable rules relating to the system; and(3) vesting management of the system in a committee selected by the county bar association.(c) The actions of a committee authorized by Subsection (b)(3) are subject to the approval of thecommissioners court.

§ 152.003. Referral of Cases

A judge of a district court, county court, statutory county court, probate court, or justice of thepeace court in a county in which an alternative dispute resolution system has been establishedmay, on motion of a party or on the judge's or justice's own motion, refer a case to the system.Referral under this section does not prejudice the case.

§ 152.004. Financing

(a) To establish and maintain an alternative dispute resolution system, the commissioners courtmay set a court cost in an amount not to exceed $10 to be taxed, collected, and paid as other courtcosts in each civil case filed in a county or district court in the county, including a civil caserelating to probate matters but not including:(1) a suit for delinquent taxes;(2) a condemnation proceeding under Chapter 21, Property Code; or(3) a proceeding under Subtitle C, Title 7, Health and Safety Code.(b) The county is not liable for the payment of a court cost under this section.(c) The clerks of the courts in the county shall collect and pay the costs to the county treasurer or,if the county does not have a treasurer, to the county officer who performs the functions of thetreasurer, who shall deposit the costs in a separate fund known as the alternative disputeresolution system fund. The fund shall be administered by the commissioners court and may onlybe used to establish and maintain the system. The system shall be operated at one or moreconvenient and accessible places in the county.

§ 152.005. Additional Fee for Certain Counties


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(a) To establish and maintain an alternative dispute resolution system, the commissioners court ofa county with a population of 2.5 million or more may, in addition to the court cost authorizedunder Section 152.004, set a court cost in an amount not to exceed $3 for civil cases filed in ajustice court located in the county, but not including:(1) a suit for delinquent taxes; or(2) an eviction proceeding, including a forcible detainer, a forcible entry and detainer, or a writ ofre-entry.(b) A clerk of the court shall collect and pay the court cost in the manner prescribed by Section152.004(c).

Chapter 154. Alternative Dispute Resolution Procedures

§ 154.001. Definitions

In this chapter:(1) "Court" includes an appellate court, district court, constitutional county court, statutory countycourt, family law court, probate court, municipal court, or justice of the peace court.(2) "Dispute resolution organization" means a private profit or nonprofit corporation, politicalsubdivision, or public corporation, or a combination of these, that offers alternative disputeresolution services to the public.

§ 154.002. Policy

It is the policy of this state to encourage the peaceable resolution of disputes, with specialconsideration given to disputes involving the parent- child relationship, including the mediationof issues involving conservatorship, possession, and support of children, and the early settlementof pending litigation through voluntary settlement procedures.

§ 154.003. Responsibility of Courts and Court Administrators

It is the responsibility of all trial and appellate courts and their court administrators to carry outthe policy under Section 154.002.

[Sections 154.004 to 154.020 reserved for expansion]

§ 154.021. Referral of Pending Disputes for Alternative Dispute Resolution Procedure

(a) A court may, on its own motion or the motion of a party, refer a pending dispute for resolutionby an alternative dispute resolution procedure including:(1) an alternative dispute resolution system established under Chapter 26, Acts of the 68thLegislature, Regular Session, 1983 (Article 2372aa, Vernon's Texas Civil Statutes [FN1]);(2) a dispute resolution organization; or(3) a nonjudicial and informally conducted forum for the voluntary settlement of citizens' disputesthrough the intervention of an impartial third party, including those alternative dispute resolutionprocedures described under this subchapter.(b) The court shall confer with the parties in the determination of the most appropriate alternative

http://web2.westlaw.com/Find/Default.wl?DB=1000301&DocName=TXCSART2372AA&FindType=L&AP=&RS=WLW2.68&VR=2.0&SP=&SV=Split&MT=Westlaw&FN=_top


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dispute resolution procedure.

§ 154.022. Notification and Objection

If a court determines that a pending dispute is appropriate for referral under Section 154.021, thecourt shall notify the parties of its determination.(b) Any party may, within 10 days after receiving the notice under Subsection (a), file a writtenobjection to the referral.(c) If the court finds that there is a reasonable basis for an objection filed under Subsection (b),the court may not refer the dispute under Section 154.021.

§ 154.023. Mediation

(a) Mediation is a forum in which an impartial person, the mediator, facilitates communicationbetween parties to promote reconciliation, settlement, or understanding among them.(b) A mediator may not impose his own judgment on the issues for that of the parties.

§12. Section 154.023, Civil Practice and Remedies Code, is amended by adding Subsection (c) toread as follows:

(c)Mediation includes victim-offender mediation by the Texas Department of Criminal Justicedescribed in Article 56.13, Code of Criminal Procedure.

§13. Section 154.073, Civil Practice and Remedies Code, is amended by adding Subsection (g) toread as follows: (g) This section applies to a victim-offender mediation by the Texas Department of CriminalJustice as described in Article 56.13, Code of Criminal Procedure.+>>SECTION 14.

§ 154.024. Mini-Trial

(a) A mini-trial is conducted under an agreement of the parties.(b) Each party and counsel for the party present the position of the party, either before selectedrepresentatives for each party or before an impartial third party, to define the issues and develop abasis for realistic settlement negotiations.(c) The impartial third party may issue an advisory opinion regarding the merits of the case.(d) The advisory opinion is not binding on the parties unless the parties agree that it is bindingand enter into a written settlement agreement.

§ 154.025. Moderated Settlement Conference

(a) A moderated settlement conference is a forum for case evaluation and realistic settlementnegotiations.(b) Each party and counsel for the party present the position of the party before a panel ofimpartial third parties.(c) The panel may issue an advisory opinion regarding the liability or damages of the parties orboth.(d) The advisory opinion is not binding on the parties.


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§ 154.026. Summary Jury Trial

(a) A summary jury trial is a forum for early case evaluation and development of realisticsettlement negotiations.(b) Each party and counsel for the party present the position of the party before a panel of jurors.(c) The number of jurors on the panel is six unless the parties agree otherwise.(d) The panel may issue an advisory opinion regarding the liability or damages of the parties orboth.(e) The advisory opinion is not binding on the parties.

§ 154.027. Arbitration

Nonbinding arbitration is a forum in which each party and counsel for the party present theposition of the party before an impartial third party, who renders a specific award.(b) If the parties stipulate in advance, the award is binding and is enforceable in the same manneras any contract obligation. If the parties do not stipulate in advance that the award is binding, theaward is not binding and serves only as a basis for the parties' further settlement negotiations.

Sections 154.028 to 154.050 reserved for expansion]

§ 154.051. Appointment of Impartial Third Parties

(a) If a court refers a pending dispute for resolution by an alternative dispute resolution procedureunder Section 154.021, the court may appoint an impartial third party to facilitate the procedure.(b) The court may appoint a third party who is agreed on by the parties if the person qualifies forappointment under this subchapter.(c) The court may appoint more than one third party under this section.

§ 154.052. Qualifications of Impartial Third Party

(a) Except as provided by Subsections (b) and (c), to qualify for an appointment as an impartialthird party under this subchapter a person must have completed a minimum of 40 classroomhours of training in dispute resolution techniques in a course conducted by an alternative disputeresolution system or other dispute resolution organization approved by the court making theappointment.(b) To qualify for an appointment as an impartial third party under this subchapter in a disputerelating to the parent-child relationship, a person must complete the training required bySubsection (a) and an additional 24 hours of training in the fields of family dynamics, childdevelopment, and family law.(c) In appropriate circumstances, a court may in its discretion appoint a person as an impartialthird party who does not qualify under Subsection (a) or (b) if the court bases its appointment onlegal or other professional training or experience in particular dispute resolution processes.

§ 154.053. Standards and Duties of Impartial Third Parties

(a) A person appointed to facilitate an alternative dispute resolution procedure under thissubchapter shall encourage and assist the parties in reaching a settlement of their dispute but maynot compel or coerce the parties to enter into a settlement agreement.


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(b) Unless expressly authorized by the disclosing party, the impartial third party may not discloseto either party information given in confidence by the other and shall at all times maintainconfidentiality with respect to communications relating to the subject matter of the dispute.(c) Unless the parties agree otherwise, all matters, including the conduct and demeanor of theparties and their counsel during the settlement process, are confidential and may never bedisclosed to anyone, including the appointing court.(d) Each participant, including the impartial third party, to an alternative dispute resolutionprocedure is subject to the requirements of Subchapter B, Chapter 261, Family Code, andSubchapter C, Chapter 48, Human Resources Code.

§ 154.054. Compensation of Impartial Third Parties

(a) The court may set a reasonable fee for the services of an impartial third party appointed underthis subchapter.(b) Unless the parties agree to a method of payment, the court shall tax the fee for the services ofan impartial third party as other costs of suit.

§ 154.055. Qualified Immunity of Impartial Third Parties

(a) A person appointed to facilitate an alternative dispute resolution procedure under thissubchapter or under Chapter 152 relating to an alternative dispute resolution system establishedby counties, or appointed by the parties whether before or after the institution of formal judicialproceedings, who is a volunteer and who does not act with wanton and wilful disregard of therights, safety, or property of another, is immune from civil liability for any act or omission withinthe course and scope of his or her duties or functions as an impartial third party. For purposes ofthis section, a volunteer impartial third party is a person who does not receive compensation inexcess of reimbursement for expenses incurred or a stipend intended as reimbursement forexpenses incurred.(b) This section neither applies to nor is it intended to enlarge or diminish any rights orimmunities enjoyed by an arbitrator participating in a binding arbitration pursuant to anyapplicable statute or treaty.

[Sections 154.056 to 154.070 reserved for expansion]

Chapter 155. Settlement Weeks

§ 155.001. Settlement Weeks

In every county with a population of 150,000 or greater there shall be a settlement week duringlaw week and judicial conference week each year or during any other two weeks as theadministrative judge of each judicial district may designate. During these weeks the districtcourts, constitutional and statutory county courts, and the family law courts will facilitate thevoluntary settlement of civil and family law cases.

§ 155.002. Committee

The administrative judge of each judicial district shall appoint a committee of attorneys and laypersons to effectuate each settlement week. The committee may include the director of anyestablished mediation or alternative dispute resolution center in the county and the chairperson ofthe local bar association's committee on alternative dispute resolution.


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§ 155.003. Mediator

Any attorney currently licensed in the state may serve as mediator during the settlement weeksunder such terms and conditions and with such training as may be determined by theadministrative judge of the judicial district. Any such attorney so appointed by the court mustmeet the qualifications and will be governed by the rules of conduct set forth in Sections 154.052and 154.053 of this code. Any attorney so requested by the administrative judge of the judicialdistrict shall serve as a mediator during the settlement weeks.

§ 155.004. Application of Alternate Dispute Resolution

The provisions of Sections 154.021 through 154.023, 154.053, 154.054, and 154.071 through154.073 of this code shall apply to parties and mediators participating in settlement weeks heldunder this chapter.

§ 155.005. Authority to Make

Each court participating in settlement weeks under this chapter shall have the authority to makeorders needed, consistent with existing law, to implement settlement weeks and ensure any party'sgood faith participation.

§ 155.006. Funding and Public Awareness

The administrative judge may use any available funding from funds regularly used for courtadministration to carry out the purpose and intent of this chapter. The administrative judge shallcooperate with the director of any established mediation or alternative dispute resolution center,the local bar, and other organizations to encourage participation and to develop public awarenessof settlement weeks.

Chapter 171. General Arbitration

§ 171.001 Arbitration Agreements Valid

(a) A written agreement to arbitrate is valid and enforceable if the agreement is to arbitrate acontroversy that:(1) exists at the time of the agreement; or(2) arises between the parties after the date of the agreement.(b) A party may revoke the agreement only on a ground that exists at law or in equity for therevocation of a contract.

§ 171.002. Scope of Chapter

(a) This chapter does not apply to:(1) a collective bargaining agreement between an employer and a labor union;(2) an agreement for the acquisition by one or more individuals of property, services, money, orcredit in which the total consideration to be furnished by the individual is not more than $50,000,except as provided by Subsection (b);(3) a claim for personal injury, except as provided by Subsection (c);(4) a claim for workers' compensation benefits; or(5) an agreement made before January 1, 1966.


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(b) An agreement described by Subsection (a)(2) is subject to this chapter if:(1) the parties to the agreement agree in writing to arbitrate; and(2) the agreement is signed by each party and each party's attorney.(c) A claim described by Subsection (a)(3) is subject to this chapter if:(1) each party to the claim, on the advice of counsel, agrees in writing to arbitrate; and(2) the agreement is signed by each party and each party's attorney.

§ 171.003. Uniform InterpretationThis chapter shall be construed to effect its purpose and make uniform the construction of otherstates' law applicable to an arbitration.

§ 171.004 to 171.020. Deleted by Acts 1997, 75th Leg., ch. 165, § 5.01, eff. Sept. 1, 1997Current through End of 1999 Reg. Sess.

ABA Model Rules of Professional Conduct

Rule 1.1 Competence

A lawyer shall provide competent representation for a client. Competent representation requiresthe legal knowledge, skill, thoroughness and preparation reasonably necessary for therepresentation.”

Rule 1.2 Scope of Representation

a lawyer shall abide by a client’s decision concerning the objective of representation, subject toparagraphs (c), (d) and (e), and shall consult with the client as to the means by which they are tobe pursued…

Rule 1.4 Communication

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to makeinformed decisions regarding the representation

Local Rules of the Federal District Courts in Texas

LOCAL COURT RULES OF THE UNITED STATES DISTRICT COURT FOR THEWESTERN DISTRICT OF TEXAS

SECTION I. CIVIL RULES

U.S.D.C. W.D. TX R. CV-88 (2001)

RULE CV-88. ALTERNATIVE DISPUTE RESOLUTION.

(a) ADR Methods Available. the Court recognizes these ADR methods; early neutralevaluation, mediation, minitrial, moderated settlement conference,summary jury trial, and


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arbitration. The Court may approve any other ADR method the parties suggest or the Courtbelieves is suited to the litigation.

(b) ADR Report. Upon order of the Court entered early in the case, the parties shall submit areport addressing the status of settlement negotiations,disclosing the identity of the personresponsible for settlement negotiations for each party, and evaluating whether alternative disputeresolution is appropriate in the case. Counsel shall certify in the report that their clients have beeninformed of the ADR procedures available in this district. In the event the parties conclude thatADR is appropriate and agree upon a method ofADR and an ADR provide, they should identify both the method of ADR and the provide theyhave selected, the method by which the provide was selected, and how the provide will becompensated.

(c) Referral to ADR. Court may refer a case to ADR on the motion of a party,on the agreementof the parties, or on its own motion; however, the Court may refer a case to arbitration only withthe consent of the parties (including but not limited to their consent by contract to arbitration). Ifthe parties agree upon an ADR method or provide, the Court will respect the parties' agreementunless the Court determines that another ADR method or provider is better suitedto the case and parties. If the parties are unable to agree on an ADR provider,the Court will selecta provider.

(d) Attendance; Authority to Settle. Party representatives with authority to negotiate asettlement and all other persons necessary to negotiate a settlement must attend the ADRproceeding.

(e) Fees. The provider and the litigants will determine the fees for the ADR. The Court reservesthe right to review the reasonableness of the fees. If the provider and litigants are unable to agree,the Court will determine an appropriate fee.

(f) Certification and List of Providers.

(1) The Court will appoint three members in each division to a standing panel on ADRproviders and designate one member as chairperson. The panel will review applications fromproviders and annually prepare a roster of those qualified under the criteria contained in this rule.

(2) To be eligible for listing, providers must meet the following minimum qualifications:a. theperson must be a member of the bar of the United States District Court for the Western District ofTexas; and b. the person must have been a member of the bar of the highest court of any state orthe District of Columbia for at least five years; and c. the person must have completed at leastforty hours training in dispute resolution techniques in an alternative disputeresolution course approved by the State Bar of Texas Minimum Continuing Legal EducationDepartment or the federal court, or have been a judge of a court of record in the State of Texas.

(3) A provider denied listing may request a review of that decision.

(4) The Court may appoint and parties may select by agreement a provider who is not on thelist.


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(g) Disqualification. No person shall serve as a provider if any of the circumstances specified in28 U.S.C. @ 455 of the Judicial Code of Conduct exist, or if the provider believes in good faiththat such circumstances exist.

(h) Relief From Referral. A party opposing either the ADR referral or the appointed providermust file written objections with the Court within ten (10) days of receiving notice of the referralor provider. Any party may obtain relief from an order upon a showing of good cause. Goodcause may include a showing that the expenses relating to alternative dispute resolution wouldcause undue hardship to the party seeking relief from the order. In that event, the Court may in itsdiscretion appoint a provider from the list of providers to serve at a reduced fee, or without fee,and at no cost to the party or parties.

(i) Confidentiality. Except as otherwise provided herein, or as agreed by the participants, acommunication relating to the subject matter of any civil or criminal dispute made by aparticipant during an alternative dispute resolution procedure, whether before or after theinstitution of formal judicial proceedings, is confidential, may not be disclosed, may not be usedas evidence against the participant in any judicial or administrative proceeding, and does notconstitute a waiver of any existing privileges or immunities.

(1) Any record made at an alternative dispute resolution procedure is confidential, and theparticipants or the third party facilitating the procedure may not be required to testify in anyproceedings relating to or arising out of the matter in dispute or be subject to process requiringthe disclosure of confidential information or data relating to or arising out of the matter indispute.

(2) An oral communication or written material used in or made a part of an alternative disputeresolution procedure is admissible or discoverable if it is admissible or discoverable independentof the procedure.

(3) If this section conflicts with other legal requirements for disclosure of communications ormaterials, the issue of confidentiality may be presented to the Court having jurisdiction of theproceedings to determine, in camera,U.S.D.C. W.D. TX R. CV-88whether the facts, circumstances, and context of the communications or materials sought to bedisclosed warrant a protective order of the Court or whether thecommunications or materials aresubject to disclosure.

(j) Summary Jury Trial. In cases where alternative dispute resolution procedures have provedunsuccessful and a complex and lengthy trial is anticipated, the Court may conduct a summaryjury trial provided that the Court finds that a summary jury trial may produce settlement of all ora significant part of the issues and thereby effect a saving in time, effort and expense for allconcerned and provided the parties consent to the procedure. The Courtshould develop procedures for such summary jury trial with the advice of counsel.

(k) Final ADR Report. At the conclusion of each ADR proceeding, the provider shall submit tothe Court a notice of outcome, including the style and number of the case, the type of case, themethod of ADR, whether the case has settled, and the provider's fees.

(l) Sanctions. The sanctions available under Federal Rule of Civil Procedure 16(f) shall apply toany violation of this rule.


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LR16.4 Alternative Dispute Resolution. Pursuant to 28 U.S.C. @ 652 (1998) and to facilitate thesettlement or narrowing of issues in civil actions, the Court adopts the following AlternativeDispute Resolution Program:

LOCAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERNDISTRICT OF TEXAS

The Advisory Group for this District has completed its statutory tasks under the Civil JusticeReform Act of 1990. This Court adopts the measures, rules, and programs incorporating the sixprinciples of litigation management and cost and delay reduction mandated for inclusion by pilotcourts and contained in the Advisory Group's Report for implementation in this district beginningJanuary 1,1992.

1. Differential Case Management [FN1].

Existing differential case management of asbestos cases through a Special Master, Veteran'sAdministration and Student Loan cases through assignment to a single Senior Judge, and prisonercivil rights and habeas corpus cases through Staff Attorney screening and processing (see Chart,Appendix E) will be expandedas follows: The Court will coordinate a team of three (3) additional Staff Attorneys for court service district-wide to screen and review new case filings for placement in appropriate case management tracksand to perform an evaluation of individual cases eligible for expedited handling, curing anydefects by recommended action early on, quickly recommending appropriate dismissal orremands. This screeningstructure is to assist the judges, and it is not to restrict a judge from directly or indirectly applyingthe judge's case-specific processing for the prompt disposition of a case.

A. Bankruptcy Appeals. Cases will be monitored from their filing by Staff Attorneys, who willreview briefs filed pursuant to Bankruptcy Rule 8009 and prepare recommendations for promptdisposition, and in cases where there is failure to timely file briefs -- preparation of proposedorders of dismissal for want of prosecution under Rule 8009.

B. Social Security Appeals. Cases will be monitored from their filing by Staff Attorneys throughjoining of issue or Motion for Summary Judgment with recommendations for disposition on therecord or motions within 140 days of the filing of the complaint.

C. FDIC, RTC, FSLIC Cases. Cases involving these parties will be screened by Staff Attorneysfor early disposition on remand, dismissal, or summary judgment, with cases not qualified forearly disposition referred immediately to the assigned judge for scheduling of the initial pretrialconference.

D. Pro Se Plaintiff Cases. These cases will be screened by Staff Attorneys for defects withprocedural instructions being forwarded to pro se plaintiffs as necessary, and preparation ofproposed dismissals of frivolous complaints as appropriate. These cases will be monitored in thesame fashion as are prisoner civil rights cases by existing staff attorneys.

E. Removed Cases. Expedited review of these cases will be accomplished by Staff Attorneys todetermine the propriety of the removal and subsequent referral to the assigned Judge for setting ofthe initial pretrial conference. Recommendations for remand will be forwarded to the assigned


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Judge. In appropriate cases, the general order requiring a discovery case management plan will beimmediately distributed. Motions to remand will be referred to Staff Attorneys forrecommendation.

F. All Other Cases. As these cases are filed, counsel for plaintiff will be served with a GeneralOrder requiring that counsel meet and prepare a joint discovery/case management plan forpresentation at the initial pretrial conference.

2. Magistrate Judges [FN2].

Each Judge in the Houston Division, consistent with the criminal and civil assignments currentlyin place, will assign five to ten percent of his/her new civil case filings to his/her assignedMagistrate Judge for handling of all pretrial responsibilities, and, on consent of the parties [FN3],through disposition. Judges will attempt at all times to maintain approximately fifty civil casesunder the supervision of each Magistrate Judge in these divisions. Judges in the Brownsville,Corpus Christi, Galveston, Laredo, and McAllen Divisions will not be affected but areencouraged to maximize utilization ofMagistrate Judges in the civil area where feasible.

3. Initial Pretrial Conferences [FN4].

The Advisory Group's proposed revision of Local Rule 8 "Initial Pretrial Conference; SchedulingOrders" is adopted as follows:

Rule 8. Initial Pretrial Conference Scheduling Orders

Within 140 days after a party files a complaint or notice of removal the judge to whom the caseis assigned will conduct an initial pretrial conference under Fed.R.Civ.P. 16 and enter ascheduling order, except in the following types of cases: (a) prisoner civil rights actions; (b) stateand federal habeas corpus actions; (c) student and veteran loan actions; (d) social securityappeals; (e) bankruptcy appeals; and (f) complaints to forfeit seized assets.

A judge may in his discretion conduct an initial pretrial conference and enter a scheduling orderin any of the types of cases excepted.

The Rule 16 Scheduling Order setting cut-off dates for new parties, motions, expert witnessesand discovery, setting a trial date, and establishing a time framework for disposition of motionswill be entered at such conference. In all cases discovery shall be limited to that determined bythe Court to be necessary for proper preparation for disposition. Should there be a prior requestfor a Rule 26(f) discovery conference, the Scheduling Order may be entered at thatconference.

Additional pretrial/settlement/discovery conferences will be scheduled by the Court as the needis identified in specific cases.

By individual notice, the Court will require attendance at allpretrial/settlement conferences "by an attorney who has the authority to bind that party regardingall matters ...", 28 U.S.C. @ 473(b)(2), and require "that all requests for extensions of deadlinesfor completion of discovery or for postponement of the trial be signed by the attorney and theparty making the request." 28 U.S.C. @ 473(b)(3).


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4. Discovery/Case Management Order [FN5].

A general order requiring the preparation of a discovery/case management plan by counsel priorto the initial pretrial conference will be entered in each case which is not placed in differentialcase management tracks 1.A through E under this plan.

5. Complex Cases.

Cases identified by the Court as complex in nature following the initial pretrial conference willbe managed by the Court as follows:

A. Discovery. In cases so identified, consideration will be given tonecessary discovery conferences and sequencing of discovery in "waves"identified in the Manual for Complex Litigation, Second, @ 21.421 (1985).

B. Bifurcation. Consideration of the applicability of Rule 42(b) and its application will be givenat the initial pretrial and subsequent conferences held by the Court.

6. Voluntary Disclosure [FN 6].

Each Judge will order discovery to proceed under the proposed federal rule on voluntarydisclosure [FN7] in a minimum of twenty cases each year in the Houston Division and aminimum of ten cases each year in the remaining divisions. This practice will be evaluatedannually to assess its effectiveness and to consider expansion or discontinuation.

7. Alternative Dispute Resolution [FN8].

While the Court is currently engaging in individual selective referral of cases to arbitration andspecial masters, the Local Rule on Alternative Dispute Resolution proposed by the AdvisoryGroup is adopted as follows:

Alternative Dispute Resolution

This court recognizes that alternative dispute resolution procedures may facilitate settlement ornarrowing of issues in certain civil actions.

Therefore, the court adopts the following ADR procedures:

A. Timing of ADR Decision.

1. Before the initial conference in a case, counsel shall discuss theappropriateness of ADR in the litigation with their clients and with opposing counsel.

2. At the initial pretrial conference the parties shall advise the court of the results of theirdiscussions concerning ADR. At that time and at subsequent conferences, if necessary, the courtshall explore with the parties the possibility of using ADR.

B. ADR Referral. The court may refer a case to ADR on the motion of any party, on theagreement of the parties, or on its own motion. If the parties agree upon an ADR method orprovider, the court will respect the parties'agreement unless the court believes another ADR


15

method or provider is better suited to the case and parties. The authority to refer a case to ADRdoes not preclude the court from suggesting or requiring other settlement initiatives.

C. Opposition to ADR Referral. A party opposing either the ADR referral or the appointedprovider must file written objections with the court within ten days of receiving notice of thereferral or provider, explaining the reasons for any opposition.

D. ADR Methods Available. The court recognizes the following ADR methods: mediation, mini-trial, summary jury trial, and arbitration. The court may approve any other ADR method theparties suggest or the court believes is suited to the litigation.

E. List of Providers. The court shall have a standing panel on ADR providers.

The court will appoint three members and designate one member as chairperson. The panel willreview applications from providers and annually prepare a list of those qualified under the criteriacontained in this rule. A provider denied listing may request a review of that decision.

1. To be eligible for listing, providers must meet the following minimum qualifications:

a. Membership in the bar of the United States District Court for the Southern District of Texas;

b. Licensed to practice law for at least ten years;

c. Completion of at least forty hours training in dispute resolutiontechniques in an alternative dispute resolution course approved by the State Bar of TexasMinimum Continuing Legal Education department.

2. A provider must submit a completed application which contains:

a. The ADR method(s) in which the provider seeks to be listed;

b. A concise summary of the provider's training, experience, andqualifications for the ADR method(s) in which the provider seeks to be listed;

c. The subject matter area(s) in which the provider has particular expertise;

d. The provider's fee schedule;

e. A commitment to accept some cases for no fee or a reduced fee.

3. Annually after listing the provider must participate in at least five hours of ADR training.

4. Each provider shall remain on the list for five years. After a five-year term the provider mayapply for relisting.

5. The court may approve any other provider the parties agree upon even though the provider isnot listed.

F. Attendance; Authority to Settle. Party representatives with authority to negotiate a settlementand all other persons necessary to negotiate a settlement, including insurance carriers, must attendthe ADR session.


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G. Fees. The provider and the litigants will determine the fees for the ADR. However, the courtreserves the right to review the reasonableness of fees.

H. Binding Nature. The results of ADR are nonbinding unless the parties agree otherwise.

I. Confidentiality; Privileges and Immunities. All communications made during ADR proceduresare confidential and protected from disclosure and do not constitute a waiver of any existingprivileges and immunities.

J. Disqualification. All providers are subject to disqualification pursuant to 28 U.S.C. @ 455(1988).

K. Conclusion of ADR Proceedings. At the conclusion of each ADR proceeding the provider,parties, and the court will take the following action:

1. The ADR provider will send the court clerk a memorandum stating the style and civil actionnumber of the case; the names, addresses, and telephone numbers of counsel; the type of the case;the method of ADR proceeding; whether ADR was successful; and the provider's fees.

2. The court clerk shall submit a questionnaire to the parties and will require counsel and theirclients to complete and return the questionnaire for reference by the court, attorneys, and public.

3. The court clerk annually shall tabulate, analyze, and report on the disposition of ADRproceedings. The clerk shall keep on file the questionnaire from closed ADR proceedings.

L. Sanctions. The sanctions available under Fed.R.Civ.P. 16(f) shall apply to any violation of thisrule.

LOCAL COURT RULES OF THE UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF TEXAS

CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLAN

PART ONE

U.S.D.C. E.D. TX Civ. Just. Exp. & Delay Reduct. Plan, Art. 3 (2001)

ARTICLE THREE. MANAGEMENT CONFERENCE.

(1) Attorney Responsibility Prior to Management Conference. Prior to the ManagementConference, attorneys for each party shall make the required disclosures, shall have completedthe depositions, if any, of the parties, and shall have conferred with the other attorneys in theaction concerning stipulations of fact and each of the items contained in Article 3, Section (3)below.

(2) Timing. Within 120 days after issues have been joined, the judicial officer assigned to casesin Tracks 3, 4, 5 and 6 shall convene a Management Conference.


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(3) Scope of Management Conference. At the Management Conference, the judicial officershall address each of the following items:

(a) confirm or modify track assignment;

(b) establish deadlines for filing of motions;

(c) determine issues to be tried;

(d) identify witnesses who will testify at trial;

(e) establish deadlines for approval of proposed expert witnesses;

(f) determine the efficacy of referring the case to alternative dispute resolution;

(g) determine feasibility of a settlement conference and the timing of such conference, if any;

(h) establish a firm trial date;

(i) consider establishing a time limit for trial;

(j) discuss litigation cost estimates with the parties and counsel;

(k) invite offers of judgment;

(l) discuss any other matter appropriate for the case.

(4) Attendance. The Management Conference shall be attended by an attorney of record withfull authority to make decisions and agreements that bind the client. Except in extraordinarycircumstances, the court expects that attorney to be the one who will actually try the case.Attendance by clients at the Management Conference is not required unless otherwise ordered bythe Court.

LOCAL COURT RULES OF THE UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF TEXAS


PART ONE

U.S.D.C. E.D. TX Civ. Just. Exp. & Delay Reduct. Plan, Art. 6 (2001)

ARTICLE SIX. MISCELLANEOUS MATTERS.(SECTIONS 1-6 NOT SHOWN) (7) Alternative Dispute Resolution. If the judicial officer determines thatthe case probably will benefit from alternative dispute resolution, the judicial officer shall havediscretion to refer the case to:


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(a) court-annexed mediation in accordance with the court's mediation plan;

(b) voluntary mini-trial or summary jury trial before a judicial officer; or

(c) other alternative dispute resolution programs designated for use in this district.

(8) Motion for Continuances. Requests for postponement of the trial shall be signed by theattorney of record and the party making the request.

(9) Offer of Judgment. At the Management Conference or any time thereafter, a party maymake a written offer of judgment. If the offer of judgment is not accepted and the final judgmentin the case is of more benefit to the party who made the offer by 10%, then the party who rejectedthe offer must pay the litigation costs incurred after the offer was rejected. In personal injury andcivil rights cases involving contingent attorneys' fees, the award of litigationcosts shall not exceed the amount of the final judgment. The Court may, in itsdiscretion, reducethe award of litigation costs in order to prevent undue hardship to a party.

"Litigation costs" means those costs which are directly related to preparing the case for trial andactual trial expenses, including but not limited to reasonable attorneys' fees, deposition costs andfees for expert witnesses.

The party who makes an offer of judgment shall set forth the deadline by which the offer mustbe accepted. The deadline must be reasonable. If the offer is not accepted in writing by thedeadline, the offer is deemed rejected on that day.

The government's participation in this Section is not mandatory, but is permitted with theconsent of the government.

(10) Docket Control Order Modification. The Docket Control Order produced at theManagement Conference may be modified at any time thereafter by the judicial officer to whomthe case is assigned.

Appendix H

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

COURT-ANNEXED MEDIATION PLAN (As Amended February 3, 1999)

(a) GENERAL PROVISIONS

(1) DEFINITIONS.

(A) Mediation is a supervised settlement conference presided over by a qualified and neutralmediator to promote conciliation, compromise and the ultimate settlement of a civil action.

(B) The mediator is an attorney or judge who possesses the unique skills required to facilitatethe mediation process including the ability to suggest alternatives, analyze issues, questionperceptions, use logic, conduct private caucuses, stimulate negotiations between opposing sidesand keep order. (C) The mediation process does not allow for testimony from witnesses. The mediator does notreview or rule upon questions of fact or law, or render any final decision in the case. Absent a


19

settlement, the mediator will report only to the presiding judge as to whether the case settled, wasadjourned for further mediation (by agreement of the parties), or that the mediator declared animpasse.

(2) PURPOSE. It is the purpose of the court, through adoption andimplementation of this Plan, to provide an alternative mechanism for the resolution of civildisputes (a court annexed mediation procedure) leading thedisposition before trial of many civil cases with resultant savings in time andcosts to the litigants and to the court, but without sacrificing the quality ofjustice to be rendered or the right of the litigants to a full trial in the event of an impassefollowing mediation.

(b) QUALIFICATION AND COMPENSATION OF MEDIATORS; ETHICAL PRINCIPLES

(1) QUALIFICATIONS. An individual may serve as a mediator in this court if:

(A) He or she is a former state court judge who presided in a court ofgeneral jurisdiction and was also a member of the bar in the state in which he or she presided; or

(B) He or she is a retired judicial officer of the United States; or

(C) He or she is a licensed attorney, has been a member of a state bar for at least seven (7) yearsand is currently admitted to the bar of this court.

In addition, attorneys who serve as mediators in this court must have completed a forty-hourmediation training course certified by the State Bar of Texas.

(2) DISQUALIFICATION. Any person selected as a mediator may be disqualified for bias orprejudice pursuant to 28 U.S.C. @ 144 by the presiding judge, and shall be disqualified in anycase in which such action would be required by a justice, judge or magistrate judge governed by28 U.S.C. @ 455.

(3) COMPENSATION. Mediators shall be compensated at a rate provided by general order ofthe court, as amended from time to time by the chief judge. Absent agreement of the parties to thecontrary, the cost of the mediator's services shall be borne equally by the parties to the mediationconference.

(A) LIMITATIONS ON COMPENSATION. Except as provided by this Plan, no mediator shallcharge or accept in connection with the mediation of any particular case any fee or thing of valuefrom any other source whatever, absent written approval of the court given in advance of thereceipt of any such payment or thing of value.

(4) MEDIATORS AS COUNSEL. Any member of the bar who is designated as a mediatorpursuant to this Plan shall not for that reason be disqualified from appearing and acting as counselin any other case pending before the court.

(5) ETHICAL PRINCIPLES FOR ATTORNEY-MEDIATORS. Any attorney acting as amediator pursuant to section (d)(1) of this Plan is subject to the ethical principles specified inAttachment 1 to this Plan. The clerk of court shall provide each attorney-mediator with a copy ofthese principles upon the attorney's designation as a mediator.


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(c) CASES SUBJECT TO MEDIATION; WITHDRAWAL.

(1) COURT REFERRAL. Except as specified below, litigants in all civil cases shall considerthe use of court-annexed mediation pursuant to this Plan at an appropriate stage in the litigation.Upon order by the presiding judge, any civil action or claim may be referred to a mediationconference except:

(A) Appeals from rulings of administrative law agencies;

(B) Habeas corpus and/or extraordinary writs;

(C) Bankruptcy appeals.

(2) APPLICATION OF COUNSEL. Any action or claim may also be referred to a mediationconference through the stipulation of the counsel of record and approval of the Court.

(3) WITHDRAWAL. Any civil action or claim referred to mediation pursuant to this Plan maybe withdrawn from mediation by the presiding judge at any time, before or after reference, upon adetermination, for any reason, that this case is not suitable for mediation.

(d) PROCEDURES FOR REFERRAL. In every case in which the Court determines thatreferral to mediation is appropriate pursuant to this Plan, the Court shall enter an order of referralwhich shall:

(1) Designate the mediator;

(2) Define the window of time in which the mediation conference may be conducted;

(3) Designate lead counsel, who shall be responsible for coordinating mediation conferencedates agreeable to the mediator and all counsel of record.

(c) SCHEDULING OF CONFERENCE.

(1) PARTY ATTENDANCE REQUIRED. Unless otherwise excused by the presiding judge inwriting, all parties, corporate representatives, and any other required claims professionals (e. g.insurance adjusters, etc.) shall be present at the mediation conference with full authority tonegotiate a settlement. Subject to the approval of the mediator, the mediation conference mayproceed in the absence of a party who, after due notice, fails to be present. Failure to complywith the attendance or settlement authority requirements may subject a party to sanctions by theCourt. And upon motion of an attending party, sanctions may be imposed by the Court on anyparty who, absent good cause shown, failed to attend the conference.

(2) CONTINUANCE. The mediator may, with the consent of all parties and counsel,reschedule the mediation conference to a date certain not later than ten (10) days prior to thescheduled trial date. Any continuance beyond that time must be approved by the presiding judge.

(f) MEDIATION REPORT. Within five (5) days following the conclusion of the mediationconference, the mediator shall submit a mediation report to the presiding judge indicating whetherall required parties were present. The report shall also indicate whether the case settled, wascontinued with the consent of the parties, or whether the mediator declared an impasse. Thepresiding judge will file the mediation report with the clerk of court.


21

(g) TRIAL UPON IMPASSE. If the mediation conference ends in an impasse, the case will betried as originally scheduled. All proceedings of the mediation conference, including statementsmade by any party, attorney, or other participant, are privileged in all respects.

(h) CONFIDENTIALITY. The mediation process is to remain confidential. Mediationproceedings may not be reported, recorded, placed in evidence, made known to the trial court orjury, or construed for any purpose as an admission against interest. A party is not bound byanything said or done at a mediation conference unless a settlement is reached.

As specified in section 6 of Attachment 1 to this Plan, an attorney-mediator should protectconfidential information obtained by virtue of the mediation process and should not disclose suchinformation to other attorneys within his or her law firm or use such information to the advantageof the law firm's clients or to the disadvantage of those providing such information. However,notwithstanding the foregoing, an attorney-mediator may disclose information (1) that is requiredto be disclosed by operation of law; (2) that he or she is permitted by the parties to disclose; (3)that is related to an ongoing or intended crime or fraud; or (4) that would prove an abuse of theprocess by a participant or an attorney-mediator.

(i) ADMINISTRATION AND EVALUATION OF THIS PLAN. And Absent entry of a generalorder to the contrary, the clerk of court is hereby designated to implement, administer, overseeand evaluate this Plan. The clerk shall make an annual report to the Court that evaluates the Plan'seffectiveness and recommends improvements to the Plan.

Attachment 1 to Appendix H, Court-Annexed Mediation Plan

ETHICAL PRINCIPLES FOR ATTORNEY-MEDIATORS

1. An attorney-mediator appointed or selected by the court should act fairly, honestly,competently, and impartially.

Comment: This is an objective, not subjective, standard. Should the integrity or competency ofan attorney-mediator be questioned, the inquiry should be whether an attorney-mediator has actedfairly, honestly, competently, and impartially. Whether this standard has been met should bemeasured from the point of view of a disinterested, objective observer (such as the judge whooversees the mediation process), rather than from the point of view of any particular party.

The imposition of a subjective appearance standard would unfairly require the neutral towithstand the subjective scrutiny of the interested parties, who, for example, might seek to attackthe neutral's impartiality if disappointed by the settlement. As this would undermine the importantpublic interest in achieving binding settlements, there is no intention to impose such a subjectivestandard under this principle.

2. An attorney-mediator should disqualify himself or herself if there is a conflict of interestarising from a past or current relationship with a party to the mediation process.

Comment: Ordinarily, an attorney-mediator cannot perform effectively if there is a past orpresent representational or other business relationship with one of the parties to the dispute, evenif that relationship existed only in connection with entirely unrelated matters. However, suchconflicts of interest may be waived by the parties, so long as the particulars of therepresentational or


22

other business relationship are first fully disclosed on a timely basis. Family relationships, andrelationships that give rise to an attorney-mediator's having a financial interest in one of theparties or in the outcome of the dispute, or prior representation with regard to the particulardispute to be addressed in the mediation process, cannot be waived.

3. An attorney-mediator should avoid future conflicts that may arise after the mediationproceeding is complete. Thus, an attorney-mediator should be barred from representing a party tothe mediation proceeding with regard to the same or substantially related matters, as should his orher law firm, except that no future conflict with regard to substantially related matters will beimputed to his or her law firm after the expiration of one year from completion of the mediationprocess, provided that the law firm shields the mediator from participating in the substantiallyrelated matter in any way.

Comment: Parties to a mediation proceeding have a reasonable expectation that they will not beharmed in the future from an attorney-mediator's knowledge about them, especially confidentialinformation gained during the mediation process. Thus, this principle would preclude theattorney-mediator from representing any other mediation party in the same or substantially relatedmatters, recognizing the sensitive nature of information, opinions, andstrategies learned by the mediator. The same impairment would be imputed to the attorney-mediator's law firm in the same case, but it would dissipate with the passage of time, ourrecommendation being one year, in any substantially related matter. This safe harbor recognizesthat it would be far too draconian to automatically preclude the law firm's representation of aprospective client forall time merely because an attorney-mediator in that firm conducted mediation proceedingsinvolving that party in the past, even in a substantially related matter. This provision assumes thatthe attorney-mediator has observed the duty of confidentiality and that he or she can be screenedfrom any future related matter undertaken by the firm. Finally, because an attorney who serves asa court-appointed mediator does not thereby undertake the representation of theparticipants as clients in the practice of law, ethical rules governing future conflicts of interestarising from past representation, such as the ABA Model Rules of Professional Conduct 1.9 and1.10, do not appear to apply. 4. Before accepting a mediation assignment, an attorney-mediator should disclose any facts orcircumstances that may give rise to an appearance of bias.

Comment: Once such disclosure is made, the attorney-mediator may proceed with themediation process if the party or parties against whom the apparent bias would operate waive thepotential conflict. The best practice is for the attorney-mediator to disclose the potential conflictin writing and to obtain written waivers from each party before proceeding.

5. While presiding over the mediation process, an attorney-mediator should refrain fromsoliciting legal business from, or developing an attorney-client relationship with, a participant inthat ongoing mediation process.

Comment: This provision prohibits the development of arepresentational attorney-client relationship, or the solicitation of one,during the course of themediation process. It is not intended to preclude consideration of enlarging the mediation processto include related matters, nor is it intended to prevent the attorney-mediator from accepting othermediation assignments involving a participant in an ongoing mediation matter, provided theattorney-mediator discloses such arrangements to all the other participants in the ongoingmediation matter.


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6. An attorney-mediator should protect confidential information obtained by virtue of themediation process and should not disclose such information to other attorneys within his or herlaw firm or use such information to the advantage of the law firm's clients or to the disadvantageof those providing such information. However, notwithstanding the foregoing, an attorney-mediatormay disclose information (a) that is required to be disclosed by operation of law, including thiscourt's Mediation Plan; (b) that he or she is permitted by the parties to disclose; (c) that is relatedto an ongoing or intended crime or fraud; or (d) that would prove an abuse of the process by aparticipant or an attorney-mediator.

Comment: This provision requires protection of confidential information learned during themediation processes. For this purpose, information is confidential if it was imparted to theattorney-mediator with the expectation that it would not be used outside the mediation process.Information otherwise discoverable in the litigation does not become confidential merely becauseithas been exchanged in the mediation process. This principle also permits disclosure ofinformation that is required to be disclosed by operation of law. This provision accommodateslaws such as those requiring the reporting of domestic violence and child abuse.

7. An attorney-mediator should protect the integrity of both the trial and mediation processes byrefraining from communicating with the assigned trial judge concerning the substance ofnegotiations or any other confidential information learned or obtained by virtue of the mediationprocess, unless all of the participants agree and jointly ask the attorney-mediator to communicatein a specified way with the assigned trial judge.

Comment: This policy forbids attorney-mediators from speaking with the assigned trial judgeabout the substance of confidential negotiations and also prohibits the assigned trial judge fromseeking such information from an attorney-mediator. Docket control should be facilitated bymeans of the attorney-mediator's report (see section (f) of the Plan) of whether the case settled ornot or through other periodic reporting that does not discuss parties' positions or the merits of thecase.

Public confidence in both the trial and settlement processes can beundermined if direct communication is permitted between the attorney-mediator and the assignedtrial judge regarding the merits of the case or the parties' confidential settlement positions.However, it does no harm to communicate with the trial judge at the joint request of the parties,such as requests for continuances, discovery accommodations, more time to pursue the effort, oradministrative closure of the case pending implementation of a settlement agreement.

8. An attorney-mediator should fully and timely disclose all fee and expense requirements to theprospective participants in the settlement process in accordance with section (c) of this Plan. Aparticipant who is unable to afford the cost of mediation may be excused from paying by the trialjudge.

Comment: If the trial judge intends to require a certain level of pro bono service from theattorney-mediator in a particular case, the level of the pro bono commitment should be explicitlydefined by the trial judge at the outset of the mediation process, then explained by the mediator tothe parties. When, as in most cases, the attorney-mediator is permitted to charge a fee tomediation participants, disputes about mediation fees, though rare, can be preventedthrough disclosure at the outset of the fee arrangements.


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LOCAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERNDISTRICT OF

TEXAS


U.S.D.C. N.D. TX Civ. Just. Exp. & Delay Plan III (2001)

III. ALTERNATIVE DISPUTE RESOLUTION (ADR).

The Court endorses Alternative Dispute Resolution (ADR) programs as effective in bringingabout settlement or narrowing of issues in civil actions. The Court will publish a pamphletdescribing the various ADR methods, their use by the Court, and their potential advantages. Thispamphlet will be provided by the Clerk's Office to counsel for all litigants and to pro se parties.The following policy regarding ADR is adopted:

A. ADR Referral. The Court requires that litigants in all civil cases, except those set out in localcivil rule 16.1, consider the use of an alternative dispute resolution process at an appropriate stagein the litigation. A judge may refer a case to ADR on the motion of any party, on the agreementof the parties, or on the judge's own motion. The judge will respect the parties' agreement unlessthe judge believes another ADR method or provider is better suited to the case and parties. Theauthority to refer a case to ADR does not preclude a judge from suggesting or requiring othersettlement procedures.

B. Opposition to ADR Referral. A party opposing either the ADR referral or the appointedprovider must file written objections within ten days of entry of the order of referral, explainingthe reason(s) for any opposition.

C. ADR Methods. The Court recognizes the following ADR methods: mediation, mini-trial,summary jury trial, and early neutral evaluation. A judge may approve the ADR method theparties suggest or any other method the judge believes is suited to the litigation. A judge may notrequire any alternative dispute resolution process except mediation and early neutral evaluation.

D. Attendance. Subject to the provisions of 28 U.S.C. @ 473(c), in addition to counsel, partyrepresentatives with the authority to negotiate a settlement and all other persons necessary tonegotiate a settlement, including insurance carriers, must attend the ADR sessions.

E. Binding Nature. The results of ADR are non-binding, unless the parties agree otherwise.

F. Confidentiality; Privileges and Immunities. All communications made during ADRprocedures are confidential and protected from disclosure and do not constitute a waiver of anyexisting privileges and immunities.

G. Administration. At the conclusion of each ADR proceeding the provider will complete andfile with the District Clerk a form supplied by the Clerk which will include:

1. The style and civil action number of the case;

2. A list of those in attendance;

3. The names, addresses, and telephone numbers of counsel;


25

4. The type of case;

5. The method of ADR proceeding;

6. Whether or not the case settled; and

7. The provider's fee.

The District Clerk annually shall tabulate, analyze and report on the disposition of ADRproceedings.

H. Neutrals. The Court will adopt appropriate processes for making neutral available for use bythe parties for each category of process offered, and promulgate procedures and criteria for theselection of neutrals on its panels. A person designated as a neutral in a case must request to beexcused from the designation in such circumstances as 28 U.S.C. @ 455 would disqualify ajustice, judge, or magistrate judge of the United States, or other applicable or professionalresponsibility standards so require.

Excerpts from: ADR AND SETTLEMENT IN THE FEDERAL DISTRICT COURTS: ASOURCE BOOK FOR JUDGES & LAWYERS (1996)

WESTERN DISTRICT OF TEXAS

Process summary

Arbitration. The Western District of Texas is one of ten courts authorized to provide mandatory,nonbinding court-annexed arbitration under 28 U.S.C. @@ 651 -658 and Local Rule CV-87. Seebelow.Mediation. Local Rule CV-88, adopted January 1, 1993, authorizes use of several methods ofADR, including mediation. See below.Other ADR. Local Rule CV-88 also allows for other types of ADR, including nonbindingarbitration for cases not subject to Local Rule CV-87, early neutral evaluation, minitrial, andmoderated settlement conference. The court has no specific procedures for these ADR methods,and their use to date has been limited.Judicial settlement conferences. District and magistrate judges conduct settlement conferences atthe request of the parties.

Of noteObligations of counsel. Attorneys must discuss ADR options with their clients and with the court.Additionally, attorneys must address in the case management statement or plan the suitability ofADR for the case and must certify that they have informed their clients of the different ADRprocedures available in the district.Evaluation. An evaluation of the district's arbitration program is reported in Barbara Meierhoefer,Court-Annexed Arbitration in Ten District Courts (Federal Judicial Center 1990).

For more informationEdward C. Prado, U.S. District Judge, 210-229-4060Nancy Stein Nowak, U.S. Magistrate Judge, 210-229-6584


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IN DEPTH

Arbitration in Texas Western

Overview

Description and authorization. The Western District of Texas is one of ten courts authorized by28 U.S.C. @@ 651-658 to establish mandatory, nonbinding court-annexed arbitration. Theprogram was established January 1, 1985, in the San Antonio and Austin divisions. Under LocalRule CV-87, cases involving monetary damages only of no more than $ 150,000, exclusive ofinterest, costs, and attorney's fees, are automatically referred to arbitration when the answer isfiled. Other cases may also be referred at the request of the parties. Threearbitrators hear presentations by the parties and issue an arbitration award.The arbitrators' fees are paid by the court.Number of cases. Between January and September 1994, twenty-two cases were referred toarbitration.

Case selectionEligibility of cases. Eligible cases are those seeking money damages only of no more than $150,000. Cases involving a request for injunctive relief are not referred to arbitration.Referral method.All eligible cases are automatically referred. Court staffselect the appropriate cases after reviewing the complaint and then notify the parties of thearbitration referral. Other cases may be referred at the request of the parties.Opt-out or removal. At any time before the expiration of the twenty-day periodfollowing the filing of the last responsive pleading, the court, sua sponte or on motion by anyparty, may grant relief for good cause. Additionally, the assigned judge may exempt an action ifthe judge finds the existence of complex or novel questions of law or a predominance of legalissues over factual issues.

SchedulingReferral. Referrals are made shortly after the answer is filed.Discovery and motions.When filed no later than the answer, a motion to dismiss, a motion for judgment on the pleadings,a motion to join necessary parties, or a motion for summary judgment stays the arbitrationprocess, unless the parties consent to proceed. The assigned judge retains authority to conductstatus andsettlement conferences, hear motions, and supervise the case in all other respects notwithstandingthe referral to arbitration. Deadlines established in the scheduling order do not relieve the partiesof compliance with the arbitration proceedings.Written submissions. No submissions are required, but before the arbitration hearing thearbitrators may review the court's file.Arbitration hearing.The arbitration hearing must begin no later than sixty days after filing of an answer. Thearbitrators are authorized to change the date and time of the hearing provided it begins withinthirty days of the hearing date set by the clerk. Any continuance beyond the thirty-day periodmust be approvedby the assigned judge. The clerk must be notified immediately of any


27

continuance. The arbitration process must be completed no later than sixty days after the answeris filed.No later than twenty-four hours before the hearing, the parties must advise the arbitrators inwriting if they have reached a settlement. Failure to do so may result in sanctions, including butnot limited to the expenses of unnecessarily impaneling the arbitration panel.Clerk's office staff arrange the arbitration hearings, which are generally held in the courtroom orany other room in any federal courthouse or office building made available to the arbitrators bythe clerk's office.Length of hearing.An arbitration session lasts less than half a day.

Program featuresParty roles and sanctions.The arbitrators may order the parties to attend, butthe hearing may proceed in the absence of any party who, after notice, fails to be present. If aparty fails to participate in the arbitration process in a meaningful manner or fails to appear at thedate and time of the scheduled arbitration hearing, the arbitrators may impose sanctions againstthe party or the attorney.Filing of award.The arbitration award is filed under seal with the clerk ofcourt not more than ten days following the close of the hearing. If no timely request for trial denovo is made, the clerk enters the award as the judgment of the court.De novo request.A party may file and serve a written demand for trial de novowithin thirty days of the filing of the award. The moving party must deposit with the clerk anamount equal to the total arbitration fees for each arbitrator. The sum deposited is returned to themoving party in the event he or she obtains a final judgment, exclusive of interests and costs,more favorable than the arbitration award. If the moving party does not obtain a more favorableresult, the deposited sum is paid to the U.S. Treasury.Confidentiality.There may be no ex parte communication between an arbitratorand any counsel or party on any matter relating to the action except for purposes of scheduling orcontinuing the hearing. A neutral may communicate with an assigned judge if sanctions appear tobe warranted. No evidence of or concerning the arbitration may be received into evidence at trial.

Neutrals

Qualifications and Training. The court maintains a list of certifiedarbitrators. To qualify for the roster, an applicant must (1) have been a member of the bar of thehighest court of any state or the District of Columbia for at least five years; and (2) either beadmitted in the district or be a member of the faculty of an accredited law school in Texas; and(3) be determined by thecourt to be competent to perform the duties of an arbitrator. Arbitrators are not required to gothrough any training.Selection for case. The clerk provides the parties a list of five arbitrators selected from the court'sroster. The parties then select three arbitrators by each striking one from the list. After a personhas served as an arbitrator in an action, he or she may not serve again for at least four months.Disqualification.No person may serve as an arbitrator in an action in which anyof the circumstances specified in 28 U.5.C. @ 455 or the Code of Judicial Conduct exist or mayin good faith be believed to exist.


28

Immunity.The court has not addressed this issue.Fees.The fee is $ 75 per day per arbitrator, paid by the court.

Program administrationThe arbitration program is handled by the clerk's office. A district judge serves as liaison judge.

Mediation in Texas Western

Overview

Description and authorization. Under Local Rule CV-88, the Western District of Texasestablished broad authorization to use ADR procedures, including mediation. Under the court'sprogram, which was adopted December 1, 1993, any civil case may be referred to mediation bythe court on its own motion or on motion of any party. Referral is made at any time that seemsappropriate for the case. A single attorney-mediator meets with the parties to try to reachsettlement and may conduct additional meetings if necessary. The mediator offersno evaluation of the case. The parties pay the fee set by the neutral and may appeal to the court ifthey think the fee charged is unreasonable. Several magistrate judges have received training inmediation and are available for use in cases involving indigent parties.Number of cases.The number of cases referred to mediation varies from judge tojudge. Although court-wide referral records are not kept, the court believes a significant numberof cases were referred to mediation from January to September 1994.

Case selectionEligibility of cases. All civil cases are eligible for referral to mediation. No cases are presumedinappropriate or ineligible.Referral method. In response to a court order entered early in the case, the parties must submit areport on case management issues and ADR. If the parties agree to use ADR, the report mustinclude the method agreed on, the name of the neutral if the parties have agreed to one, and howthe neutral will be compensated. The court on its own motion and without party consent may alsoorder the parties to participate in nonbinding mediation.Opt-out or removal.If a party shows good cause, it can obtain relief from anorder compelling participation in mediation. Good cause may include a showing that the expensesrelating to alternative dispute resolution would cause undue hardship to the party. The court mayin its discretion appoint a neutral, including a qualified magistrate judge, to provide ADR servicesat no cost.

SchedulingReferral. The referral may occur at any time appropriate for the case.Written submissions. Other than the parties' report identifying the type of ADR selected, there areno specific requirements for written submissions before the mediation session.Mediation session.The mediation proceeding begins at a date and time selectedby the mediator but not later than forty-five days after entry of the order of referral to mediationor appointment of a mediator, whichever is later.Mediation sessions are arranged by the neutral,and sessions are held at the neutral's office.Number and length of sessions.


29

Mediation sessions generally last several hours to a full day.

Program featuresDiscovery and motions. Referral to mediation does not stay the deadlines otherwise establishedby the court.Party roles and sanctions.Party representatives with settlement authority and all other people necessary to negotiate asettlement must attend the mediation.The sanctions available under Fed. R. Civ. P. 16(f) apply to any violations.Outcome.At the conclusion of each ADR proceeding, the neutral submits to thecourt a notice indicating whether the mediation process resulted in settlement.Confidentiality.Any communication relating to the subject matter of the disputeis confidential, as is any record made at a mediation. The participants and the neutral may not berequired to testify in any proceeding relating to or arising out of the matter in dispute and may notbe subject to any process requiring disclosure of related confidential information or data.

NeutralsQualifications and training. The court appoints a three-member panel in each division to reviewapplications and prepare an annual roster of qualified neutrals. Minimum qualifications forapplication include: (1) membership in the bar of this district or on the faculty of an accreditedlaw school in Texas; and (2) membership in the bar of the highest court of any state or the Districtof Columbia for at least five years; and (3) completion of at least forty hours of training in disputeresolution techniques in a course approved by the State Barof Texas Minimum Continuing Legal Education Department; and (4) agreement, if called on bythe court, to accept mediation referrals on a pro bono basis.Selection for case.If, after deciding to use mediation, the parties do notselect a neutral on their own initiative, the court provides a list of neutrals qualified by the courtand maintained by the clerk. The parties must then confer to see if they can agree on a neutralfrom the roster or someone else. If they cannot, the court makes the selection.Disqualification.No person is allowed to serve as mediator if any of thecircumstances specified in 28 U.S.C. @ 455 or the Judicial Code of Conduct exist or if the neutralbelieves in good faith that such circumstances may exist.Immunity.The court has not addressed this issue.Fees. The parties pay the fee set by the neutral and may appeal to the court if they think the fee isunreasonable. If a party seeks relief from referral to mediation on grounds that it cannot afford thefee, the judge may appoint a neutral to serve pro bono.

SOUTHERN DISTRICT OF TEXAS

Process summary

Mediation. The Southern District of Texas established a mediation program under the district'sCJRA plan and Local Rule 20, both effective January 1, 1992 (in February 1994, Local Rule 20was renumbered Local Rule 22). See below.Neutral evaluation (arbitration).


30

Local Rule 20 and the district's CJRA plan also authorize referrals to a hybrid neutral evaluationprocess, called arbitration by the court. See below.Other ADR.On occasion, judges appoint special masters to settle cases or conduct summary jury or summarybench trials.Judicial settlement conferences.Some judges hold settlement conferences on acase-by-case basis.

Of noteObligations of counsel.Attorneys must discuss ADR with their clients and withopposing counsel and must demonstrate in their case management statement that they have doneso. They must also discuss in the case management statement whether ADR is suitable for thecase and must be prepared to discuss this topic with the judge.Evaluation.The court conducts an annual evaluation of its ADR programs. As oneof the ten pilot courts established by the CJRA, the court is part of the RAND study of the pilotand comparison districts, which will be reported to Congress by the Judicial Conference in 1996.

For more informationRobbie Westmoreland, Administrative Analyst, 713-250-5436

IN DEPTH

Mediation in Texas Southern

Overview

Description and authorization.Through Local Rule 20 and the CJRA plan, botheffective January 1, 1992, the Southern District of Texas authorized a mediation program (LocalRule 20 was renumbered to Local Rule 22 in February 1994). Any civil case may be referred tomediation by a judge or party at any time appropriate for the case. A single mediator meets withparties to try to reach settlement or, failing that, to help narrow issues. Direct discussions betweenparties may be encouraged, or shuttle diplomacy may be used. Some mediators offer evaluationsof the case, but no dispositive decisions are given. Sessions lasting for more than one dayoccasionally occur, and the entire process isconfidential. The mediator's fee is paid by the parties.Number of cases.Between January and September 1994, 263 cases were referred tomediation.

Case selectionEligibility of cases. All civil cases are eligible for referral to mediation. The most commonreferrals are contract, tort, civil rights, and labor cases. The only cases routinely not referred tomediation are those involving the United States or prisoners as parties.Referral method. Before the initial scheduling conference in the case, counsel must discuss theappropriateness of ADR with their clients and opposing counsel. At the first conference, theparties must advise the court of the results of their discussion. At that time, and in subsequent


31

conferences if necessary, the court will explore with the parties the possibility of using one of thecourt's ADR programs. If appropriate, the assigned judge may refer a case to mediationwithout party consent, or referral may be made at the request of one party. All parties to the case,including the mediator, are notified by mail once an order referring the case is entered.Opt-out or removal.If the parties agree on an ADR method, the judge willrespect their choice unless the judge believes another ADR method would be better. A partyopposing the referral to mediation must file written objections with the judge within ten days ofreceiving a notice of referral.

SchedulingReferral.Referral to mediation may be made at the initial schedulingconference, after discovery has been completed, or at any time that seems appropriate.Written submissions.There are no standard requirements regarding materials tobe submitted before the mediation session. The mediator may request submission of specifiedmaterials when he or she arranges mediation with the parties.Mediation session.There are no deadlines or timelines for completing themediation session. The session is held either at the courthouse or at the neutral's office. Theneutral, the parties, and court staff jointly make the arrangements for the mediation session.Number and length of sessions. Questionnaires indicate that the average mediation proceedinglasts between seven and eight hours, although complex cases (as indicated by the presence ofmultiple parties) tend to require more time. Most mediation proceedings require only one session,concluded within a single day.

Program featuresDiscovery and motions. Other case activities go forward during the mediation process unless thejudge specifically orders otherwise. Some judges routinely suspend scheduling deadlines forADR, while other judges prefer to leave scheduling deadlines in place.Party roles and sanctions. Attendance at the mediation session is required for partyrepresentatives with authority to settle and all other people necessary to negotiate a settlement,including insurance carriers. The sanctions available under Fed. R. Civ. P. 16(f) apply to anyviolations of the mediation rule.Outcome.The mediator must file a memorandum with the clerk of court notingwhether settlement occurred and describing the type of case involved, the amount of fees charged,and the names and addresses of participants in the proceeding.Confidentiality.All communications made during mediation are confidential, areprotected from disclosure, and do not constitute a waiver of any existing privileges andimmunities.

NeutralsQualifications and training.The court maintains a panel of ADR neutrals.Applicants for the panel are reviewed by a three-member committee made up of a district judge, aprofessional mediator, and a member of the Southern District of Texas Advisory Group. To beeligible for the panel, providers must (1) be a member in the bar of this court; (2) be licensed to


32

practice law for at least ten years; and (3) have completed at least forty hours of training indispute resolution techniques in an ADR course approved by the State Bar of TexasContinuing Legal Education Department. Those on the panel are appointed for five years andmust complete at least five hours of ADR-related training each year.Selection for case.If the parties agree on a mediator, the assigned judge willrespect the choice unless the judge believes another mediator would serve the needs of the casebetter. If the court selects the mediator and the parties object, they must do so in writing withinten days of receiving notice of the selection. Selections are made from the court's panel ofneutrals. On occasion, judges and parties select a neutral who has expertise in the subject matterof the case, although this is not a requirement for the process. Disqualification. Thedisqualification standards for mediators are those spelledout in 28 U.S.C. @ 455.Immunity.The court believes that neutrals have immunity protections underexisting law.Fees.The parties pay the fee normally charged by the mediator, unless themediator is ordered by the court to proceed for no fee. The court reserves the right to review thereasonableness of the fee.

Program administrationClerk's office personnel maintain the list of approved mediators, collect information from parties,and perform the annual assessment of the program required by Local Rule 22. A judge serves asliaison with the clerk's office for ADR matters.

Neutral Evaluation (Arbitration) in Texas Southern

Overview

Description and authorization. Under its CJRA plan and Local Rule 20, both effective January 1,1992, the Southern District of Texas established a nonbinding ADR process for settlement andissue narrowing (in February 1994, Local Rule 20 was renumbered to Local Rule 22). Calledarbitration by the court, the hybrid process combines elements of neutral evaluation, mediation,and arbitration and is similar in most respects to the neutral evaluation processused in some other districts. Almost all civil cases are eligible for referral on the motion of oneparty, by agreement of all parties, or on the court's own motion. A single neutral, called anarbitrator, meets with the parties to try to reach a settlement and, failing that, to narrow issues.The neutral will offer an evaluation of the case but will not give a dispositive decision unless theparties voluntarily agree to accept it as the binding decision in the case. Theneutral is paid by the parties at market rates.Number of cases.Between January and September 1994, one case was referred toneutral evaluation.Case selectionEligibility of cases.Almost all civil cases are eligible for this process. Theonly cases routinely not referred are those involving the United States or prisoners as a party.Referral method.The judge may refer a case to this process on the motion of one


33

party, agreement of all parties, or on the court's own motion. All parties, including the neutral, arenotified by mail once the referral order is entered.Opt-out or removal.Any party opposing either the referral or the appointedneutral must file written objections within ten days of receiving notice of the referral or provider,explaining the reasons for the opposition.

SchedulingReferral.Referral may be made at the initial scheduling conference, afterdiscovery has been completed, or at any time that seems appropriate.Discovery and motions. Other activities go forward during the ADR process unless specificallyordered otherwise. Some judges routinely suspend deadlines for ADR, while other judges preferto leave scheduling deadlines in place.Written submissions.Only those submissions requested by the neutral or requiredby order of the court in a particular case must be made before the ADR session.ADR session.The ADR session may be held at the courthouse or at the neutral'soffice. Arrangements are made by court staff, the neutral, and the parties.Local Rule 22 does not specify a time frame within which the ADR session must take place, butthe court may impose such a time frame by order.Length of session.This information is not yet available.

Program featuresParty roles and sanctions. Party representatives and all other people necessary to negotiate asettlement, including insurance carriers, must attend the ADR session. The sanctions availableunder Fed. R. Civ. P. 16(f) apply to any violation of the court's ADR procedures.Filing of outcome. The neutral must file a memorandum with the clerk of court describing theresults of the process, the type of case, the amount of fees charged, and the names and addressesof participants in the proceeding. The ADR memorandum to the clerk is a public document and isfiled in the case file.De novo request. There is no provision for requesting trial de novo because the goal of theprocess is settlement or issue narrowing, and a decision is not rendered unless the parties haveagreed that the decision will be binding.Confidentiality.All communications made during ADR proceedings areconfidential, are protected from disclosure, and do not constitute a waiver of any existingprivileges and immunities.

NeutralsQualifications and training. The court maintains a panel of ADR providers. Applicants for thepanel are reviewed by a three-member committee consisting of a district judge, a professionalmediator, and a member of the Southern District of Texas Advisory Group. To be eligible forappointment to the panel, ADR neutrals must (1) be a member of the bar of this court; (2) belicensed topractice law for at least ten years; and (3) complete at least forty hours of training in disputeresolution techniques in an ADR course approved by the State Bar of Texas Continuing LegalEducation Department. Members of the roster must participate in at least five hours of ADRtraining each year and are appointed for five years.


34

Selection for case.This court assigns each case one attorney-neutral, selectedby either the court or the parties from the court's roster or elsewhere. Judges and partiessometimes base their selection on the neutral's expertise in the subject matter of the case.

Disqualification.Neutrals are subject to disqualification in accord with 28U.S.C. @ 455 and the requirements of Local Rule 22.Immunity. The court believes that neutrals have immunity protections under existing law.Fees.The parties pay the neutral's market rate fees, unless the court orders the neutral to proceed probono.

Program administrationClerk's office personnel maintain the list of approved neutrals, collect information from parties,and perform the annual assessment of the program required by Local Rule 22.A judge serves asliaison with the clerk's office for ADR matters.

NORTHERN DISTRICT OF TEXAS

IN BRIEF

Process summary

Mediation. Under its CJRA plan, effective July 1, 1993, the Northern District of Texas authorizesreferral of civil cases to private providers of mediation and other ADR services. See below.Other ADR. In its CJRA plan, the court also authorizes case-by-case referrals to minitrial,summary jury trial, or other ADR methods. Cases may be referred on the motion of any party, byagreement of all parties, or on the judge's motion. Any civil case is eligible for referral. BetweenJuly 1, 1993, and June 30, 1994, no cases were referred to these ADR processes.Judicial settlement conferences.Under the CJRA plan, the court authorizesmandatory settlement conferences in civil cases and strongly favors early settlement discussions.The assigned judge may host the settlement conference. In a nonjury case the judge will notdiscuss settlement figures unless requested by the parties.

Of noteObligations of counsel.Attorneys are required to discuss ADR options with theirclients.Information from court.An ADR booklet for counsel and litigants describes theADR processes offered by the court and answers commonly asked questions.For more informationMichael Simon, Judicial Support Manager, 214-767-9551

IN DEPTH

Mediation in Texas Northern

Overview


35

Description and authorization. Under its CJRA plan, effective July 1, 1993, the Northern Districtof Texas authorizes referral of civil cases to private providers of mediation. A judge may refer acase to mediation on the motion of any party, on agreement of the parties, or on the judge'smotion without party consent. Almost all civil case types are eligible for mediation, but referralshave been most common in contract and employment civil rights cases. The mediators arecompensated by the parties at market rates.Number of cases. Between January and September 1994, approximately 580 cases were referredto mediation.

Case selectionEligibility of cases. Almost all civil cases are eligible for referral to mediation or other forms ofADR. Contract cases and employment civil rights cases constitute the majority of referrals.Prisoner cases and Social Security appeals are generally ineligible for mediation.Referral method.A judge may refer a case to mediation on the motion of anyparty, on agreement of the parties, or on the judge's own motion without party consent. A writtenorder of referral is entered.Opt-out or removal. A party opposing the ADR referral or the appointed mediator may filewritten objections within ten days of the order of referral.

SchedulingReferral.A case may be referred to mediation or other forms of ADR at any stageof the litigation.Written submissions.The mediator or other ADR neutral may require writtensubmissions from the parties.Mediation session.The order of referral establishes a time frame forcommencement and completion of the mediation process. The mediator makes the logisticalarrangements for the mediation session, which is held at the mediator's office.Number and length of sessions.A single mediation session is generally held, which lasts six to eight hours.

Program featuresDiscovery and motions.The referring judge determines whether other caseactivities go forward or are suspended during the ADR process.Party roles and sanctions. In addition to counsel, party representatives with authority to settlemust attend, as must all persons necessary to negotiate a settlement, including insurance carriers.Failure to comply with the attendance requirements can result in sanctions.Outcome.At the conclusion of the ADR proceeding, the mediator must file a formwith the court providing a list of attendees and their addresses, the type of case and ADR processused, whether the case settled, and the mediator's fee.Confidentiality.All communications made during the mediation proceedings areconfidential and protected from disclosure. The only contact permitted between the referringjudge and the mediator is the submission of a summary form after the mediation is concluded.

Neutrals


36

Qualifications and training.ADR providers in Texas are regulated by statestatute and must satisfy statutory requirements to practice. The Northern District of Texas usesmediators who have met the state's qualification and training requirements set forth in Tex. Civ.Prac. and Rem. Code @ 154.052.Selection for case.The mediator is appointed by the assigned judge and is namedin the order of referral. The judge selects the mediator from a list of private providers. If theparties are dissatisfied with the court's appointment, they may agree on a different mediator andmust notify the court of their choice within ten days of the order of referral.Disqualification. No disqualification rules have been established by the court.Immunity.The court has not addressed this issue.Fees.The mediator is paid by the parties at the mediator's establishedprofessional rate.

Program administrationMediation referrals are handled by each district judge and magistrate judge. The clerk's officemaintains all records and provides an annual statistical analysis.

EASTERN DISTRICT OF TEXAS

IN BRIEF

Process summary

Mediation. The Eastern District of Texas authorized a mediation program under its CJRA plan,effective December 31, 1991. See below.Other ADR. On occasion the court appoints special masters for settlement purposes.Judicial settlement conferences.Under the court's CJRA plan, a mandatory casemanagement conference is held in each case, at which settlement may or may not be discussed.

Of noteObligations of counsel.Attorneys must be prepared to discuss ADR with the judgeat the case management conference.Information from court.The court makes a mediation booklet available to counseland litigants.

For more informationDavid Maland, Clerk of Court, 903-592-8195

IN DEPTH

Mediation in Texas Eastern

Overview


37

Description and authorization. Under its CJRA plan, adopted on December 31,1991, the EasternDistrict of Texas established a mediation program, which was implemented in August 1992.Except for a few case types, all civil cases are eligible for referral by the assigned judge or maybe referred at the request of all parties. The mediation session is conducted by a certified neutralmediatorselected from the court's roster by the parties or the court. The purpose of mediation is to promoteconciliation and settlement of the case. The mediator may conduct both joint and private sessionswith the parties and is compensated by the parties at a rate set by the court.Number of cases.Between January and September 1994, forty-seven cases werereferred to mediation.

Case selectionEligibility of cases.Almost all civil cases are eligible for mediation. Themost commonly referred cases are personal injury, products liability, routine diversity, and civilrights cases, as well as cases in which the parties have a long-term relationship. Ineligible formediation are administrative appeals, habeas corpus cases, extraordinary writs, and bankruptcyappeals. Also considered unsuited to mediation are cases with multiple parties or unusual legalissues.Referral method.Any eligible civil case may be referred to mediation by theassigned judge without party consent. Cases may also be referred by stipulation of all parties. Anorder of referral is entered by the assigned judge.Opt-out or removal.A case may be withdrawn from mediation by the assigned judgeat any time if the case is determined not suitable for mediation.

SchedulingReferral.Referral to mediation can occur at any time. An order of referral is entered by the assigned judge,designating the mediator, setting time frames for the mediation, and designating a lead counselwho will be responsible for coordinating two alternative mediation dates.Written submissions. At least ten days before the mediation conference, each party must submitto the mediator and opposing counsel a brief summary of the facts and issues in the case and a listof who will attend the mediation session. The submission is confidential and is not placed in thepublic recordof the case.Mediation session.The assigned judge sets the desired time frame for the mediation in his or her referral order.Generally, mediations are held about a month before trial. Specific dates for the session areproposed by counsel,which the assigned judge uses to schedule the session. Mediation sessionsare usually held at the courthouse.Number and length of sessions.This information is not available.

Program featuresDiscovery and motions. Other case activities go forward during the mediation.Party roles and sanctions.Unless excused by the assigned judge in writing, all


38

parties, corporate representatives, and any other required claims professionals with full authorityto negotiate a settlement must attend the mediation session. Failure to comply with the attendanceor settlement authority requirements may result in sanctions.Outcome.Within five days of the mediation conference, the mediator must file areport indicating whether all required parties were present and whether the case settled, wascontinued with the consent of the parties, or was declared at an impasse by the mediator. If theparties reach settlement, lead counsel must notify the court by filing a settlement agreementsigned by the parties and the mediator within ten days of the mediation conference.Confidentiality.All mediation proceedings, including statements by any party,attorney, or other participant, are confidential. The proceedings may not be recorded, reported,placed in evidence, or made known to the judge or jury. A party is not bound by anything said ordone at the mediation conference unless a settlement is reached.

NeutralsQualifications and training.An individual may be certified for the court'sroster if he or she is (1) a former state court judge who presided in a court of general jurisdictionand was also a member of the bar in a state in which he or she presided; (2) a retired federaljudge; or (3) a licensed attorney who has been a member of a state bar for at least ten years and iscurrently admitted to the bar of this court. The applicant must also complete forty hours ofmediation training required by the court and must be deemed competent to serve as amediator by the chief judge.Selection for case.The court or the parties select the mediator from thecourt's roster. A judge may permit the parties to select a mediator from outside the roster.Disqualification.Any person selected as a mediator may be disqualified for biasor prejudice as provided by 28 U.S.C @ 144 and must be disqualified in any case in which suchaction would be required by a justice, judge, or magistrate judge governed by 28 U.S.C. @ 455.Immunity.The court has not addressed this issue.Fees.The parties equally share the mediator's fee, which is set by the court in a standing order and isrevised from time to time. The current fee ranges from $ 125 to $ 250 per hour.

Program administrationMediation referrals are individually administered by each district judge. The clerk's officeprovides some logistical support, such as accepting attorney-mediator applications andmaintaining and distributing the list of certified mediators.

Copyright Information: This publication is in the public domain and may be usedin whole or part, provided that the material is not altered and provided that itis clearly identified as a joint publication of the Federal Judicial Center andthe CPR Institute for Dispute Resolution, 1996. 112G2W


39

Adoption of the Lawyer’s Creed by the Federal District Courts of Texas

On November 7, 1989, the Texas Supreme Court and the Texas Court of Criminal Appealsadopted the Texas Lawyer's Creed to encourage honorable conduct amongTexas lawyers and to discourage abusive litigation tactics. A copy of the Creed is attached. Thefour Chief Judges of the federal districts in Texas signed the attached proclamation on November9, 1994, commending the Creed to lawyers practicing in Texas federal courts. In light of the wideacceptance of the Texas Lawyer's Creed, United States District Judges of the Western District ofTexas hereby adopt the Creed and commend it for observance to all lawyers practicing in thisDistrict. It should be understood that the Creed is aspirational and that any failure to follow itcannot be the basis for any sanction or other remedy.

DATED this 30th day of January, 1995.

HARRY LEE HUDSPETH,

Chief Judge

Western District of Texas

PROCLAMATION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN, NORTHERN, SOUTHERN AND WESTERN DISTRICTS OF TEXAS

WHEREAS, on November 7, 1989, the Supreme Court of Texas and the Texas Courtof Criminal Appeals adopted "The Texas Lawyer's Creed -- A Mandate forProfessionalism"; and

WHEREAS, the purpose of the Creed is to eliminate abusive litigation tactics which are adisservice to our citizens, harmful to clients, and demeaning to our profession; and

WHEREAS, the Texas Lawyer's Creed has aspirational standards and encourages attorneys toadhere to the highest principles of professionalism in their dealings with the legal system, clients,judges and other lawyers; and WHEREAS, many lawyers and courts across the state have embraced the TexasLawyer's Creed and adopted its tenets for conducting themselves with integrity, civility andcourtesy; and

WHEREAS, most attorneys practicing in the Texas federal courts are Texasattorneys subject to the recommendations of the Texas Lawyer's Creed;

THEREFORE, Be It Resolved that United States District Courts for the Eastern, Northern,Southern, and Western Districts of Texas commend to attorneys practicing in these Districts athorough study of The Texas Lawyer's Creed; and

Be It Further Resolved, as stated in the Creed, that all attorneys of theEastern, Northern, Southern, and Western Districts rededicate themselves topractice law so that they can enhance public confidence in the legal profession,faithfully servetheir clients, and fulfill their responsibility to the legal system.


40

APPROVED this 9th day of November, 1994.RICHARD A. SCHELL, Chief Judge BAREFOOT SANDERS, Chief JudgeUnited States District Court United States District Courtfor the Eastern District of Texas for the Northern District of Texas

NORMAN W. BLACK, Chief Judge HARRY LEE HUDSPETH, Chief JudgeUnited States District Court United States District Courtfor the Southern District of Texas for the Western District of Texas


41

NO.

§ IN THE DISTRICT COURTOF

§Plaintiff, §

§vs. § TRAVIS COUNTY, TEXAS

§§

Defendant. § 345TH JUDICIAL DISTRICT

ORDER APPOINTING MASTER

At the request of Plaintiff _________ and Defendant _____ the Court enters the

following Order;

1. __________, attorney for _______________ by 2:00 p.m., Thursday, April 19,

2001, will turn over to the Master appointed below the following: all personal computers, lap top

computers, and removable computer electronic storage devices (i.e., tapes, removable hard drives,

zip drives, diskettes, and floppy disks) (collectively, along with the recited computers, the

“Devices”), and all documents in whatever form marked “ Confidential Proprietary” that were in

the possession of _____ at noon on Friday, April 13, 2001 (collectively, including the Devices

and documents, to be known as the “Materials”). The Master shall, within one business day,

prepare a written inventory of all Materials and produce photographs of all Devices produced to

him, and supply a copy of the inventory and photographs to both parties.

2. The Court appoints ___ as the Master for the Materials that the Court ordered

produced in its Order on Expedited Production. ___ shall be responsible for the fees and

expenses for the Master to make these copies.

3. The Court directs that ___________ of _____________ serve as a technician to

make three (3) bit image copies of the Devices turned over to the Master. Such image copies

shall have a feature that will show if there has been modification of the data contained in the

copies subsequent to the creation of the copies. _____________ shall be responsible for the fees


42

and expenses for the technician to make these copies. During the process of making the copies,

the technician will not scrutinize the contents of the files.

4. The three (3) bit image copies shall be retained by the Master until agreement of

the parties or further order of the Court concerning discovery of the information on the copies.

5. When copying of the Devices is completed, the Master shall promptly return the

Devices to ________. Prior to returning the Devices, however, the Master shall cause a

technician, who shall be agreed to by the parties or appointed by the Court, to obliterate from the

Devices of any copies or versions or excerpts of the following documents that may be found on

such Devices:

• CPD Apple Update 2601.ppt• Draft Improvement Plan-Jan 2001 Actual-Budget.xls• PDC Pro Forma P&L 2000 & 2001 (updated 01-11-01).xls• V’ger Contribution Mgn Analysis-Jan 29 2001 xls• Profit Improvement Plan-Jan 2001 Acutal-Budget.xls• PPC Proforma P&L 2000 & 2001(updated 01-11-01).xls• V’ger Contribution Mgn Analysis-Jan292001.xls• CPD 5-Year Plan Final 1-31-01.xls• Profit Improvement Plan-Updated Feb 14, 2001.xls• QNX.xls• [“Codeword”]_IBP_-_WIP_(Rev_1.doc• [“Codeword”]_OSW_121400no_Applx.xls• Terminator OSW Rev b 2 22 01 (most likely).xls• 2000 Cash flow metric.xls• 1999 vital few res.ppt• CPD 2001 Priority Final (Most Likely) 1-31-01.xls• CDP Strategy 2001 Rev 3.ppt

• Cost Reduction.xls• Gross Margin Bridge.xls• [“Codeword”] 2-21-01 Finance Sensitivity Analysis.xls• Apple P&L and V’ger (B Wilkie) 02-22-01.ppt• Apple P&L and V’ger (B Wilkie) 02-22-01 (Rev). ppt• [“Codeword”] 02-23-01 Apple vs. Embedded Sensitivity Analysis. xls• [“Codeword”] 2-21-01 Finance BOM Sensitivity Analaysis.xls• [“Codeword”] OSW 02-23-01 Embedded Only.xls• NCSG Platform Review.doc• Tundra Fin.xls• Tundra Bus Case.doc• [“Codeword”] IBP_-_WIP_(Rev_1.doc• Sector NPI.rev1.3.23.01.xls


43

Further, any other information that appears in the opinion of the Master to be property

shall be obliterated. Any documents or information from the documents mentioned by name or

content here, shall be treated as confidential in the absence of clear indication otherwise from __.

This means, among other things, that any use of any information from these documents in court

papers or hearings shall be made under the protection of appropriate protective orders. Each

party obligates itself to keep this information confidential.

6. The Master and any technician working with the Master shall be bound

to use any information found on the Devices solely for the purpose of discovery, preparation, and

trial of this litigation and for no other purpose whatsoever, and the information shall not be

disclosed to any other person except in accordance with the terms of this or a further Court order.

7. The Court’s Temporary Restraining Order issued on April 13, 2001, will

continue to remain in effect.

8. The bond currently set at $10,000 shall, upon return of the Devices

to_________, be reduced to $2,000.

_____________________________________________________

DATE TRAVIS COUNTY DISTRICTJUDGE,

PRESIDING

____________________________ORDER APPOINTING MASTER


44

CHAPTER 17

REFERRAL OF CASES TO ADR PROCEDURES

17.1 Purpose and Scope

This chapter shall direct the referral of cases to nonbinding alternative dispute resolution

(ADR) procedures in the Travis County District Courts. Where applicable, it shall apply to

(a) the mandatory referral to ADR procedures of cases as set forth in this chapter at section

17.4(a) below; (b) the mandatory referral to ADR procedures of dismissal notice cases, as set

forth in Chapter 11.3 of these Local Rules; and (c) the discretionary referral of other cases to

ADR procedures by a District Court, on the Court's own motion, on a motion by a party, or

by agreement of the parties.

17.2 Authority for Referral of Cases to ADR Procedures

This chapter and Chapter 11 are based upon the judicial authority of the Travis County

District Courts under the Constitution, statutes, and common law of Texas, and in particular

upon the authority of (a) the Texas Alternative Dispute Resolution Procedures Act, Tex. Civ.

Prac. & Rem. Code § 154.001, et seq., providing for referral of cases to ADR procedures;

and (b) Texas Rule of Civil Procedure 165a, providing for dismissal of cases for want of

prosecution.

17.3 Policy for Referral of Cases by District Courts

It shall be the policy of the Travis County District Courts to encourage the peaceable

resolution of disputes and the early settlement of pending litigation by identifying cases

appropriate for referral to nonbinding ADR procedures pursuant to the rules set out in this

chapter. Of course, parties are encouraged to first attempt to settle their cases without ADR.

17.4 Cases to be Referred to ADR Procedures

(a) All cases set for trial on the merits on the jury docket or on the more than half day

non-jury docket [Local Rule 2.4(a)], including cases set before an Associate Judge,

are automatically referred to pre-trial mediation, except as provided in section 17.5

below.

(b) All cases in which notice of dismissal for want of prosecution has been given as set

out in Chapter 11.3 of these rules are automatically referred to ADR procedures.


45

(c) Any other case deemed appropriate, in the discretion of a District Court,

may be referred to ADR procedures. In determining whether to refer a case to ADR

procedures, the Court, may give consideration to such factors as the subject matter

of the case, the amount in controversy, the complexity of the case, the number of

parties, the interest of the parties in pursuing ADR procedures, the availability of

ADR procedures, and the likelihood of settlement by ADR procedures.

(d) Nothing in this chapter shall prevent a case from being submitted to ADR at

any time by the agreement of the parties, by motion of one of the parties pursuant to

Tex. Civ. Prac. & Rem. Code § 154.001 et seq., or on the Court’s own motion.

17.5 Cases Exempt or Excused from Referral to ADR Procedures

(a) The following types of cases are exempt from automatic referral to ADR

procedures pursuant to this rule: 1) Administrative appeals challenging an agency

order or rule; and 2) cases brought by the Department of Protective and Regulatory

Services under the Family Code. In any exempt case a party may still file a motion

to refer the case to ADR.

(b) Cases are excused from automatic referral to ADR procedures when

counsel for one or more of the parties files notice that the dispute was submitted to

mediation or another ADR process prior to the date the setting was obtained.

(c) If any party to a case files a motion objecting to the automatic referral to

ADR and the court hearing the motion finds that there is a reasonable basis for the

objection, the case will be excused from the referral. If all or most of the parties

object to mediation, those objections will be weighed carefully. The Court,

however, may still require mediation if the judge determines that there is not a

reasonable basis for the objection. Special consideration may be given to whether

or how cases are mediated in which there are allegations of domestic violence.

17.6 Notice and Objections

(a) The party requesting the setting that automatically refers the case to ADR

procedures shall be responsible for notifying all other parties of the referral. Where

the referral is on the Court’s own motion, the Court shall notify the parties of this

determination.


46

(b) Any party may, within ten days after receiving notice of the referral, file a

written objection to it. A hearing may be requested by any party or may be set by

the Court.

(c) A hearing requested pursuant to (b) above must be set and heard before the

beginning of the docket announcement period for the date of trial (see Local Rule

3.2) or the objection to the referral is deemed waived. If an objection to the referral

is waived or denied, parties must complete ADR before the

announcement period for the date of trial to avoid being moved to the

bottom of the list of cases set for the same date (see local rule 17.10(a)).

17.7 Types of ADR Procedures

The following types of ADR procedures authorized by the Texas Alternative Dispute

Resolution Procedures Act, as set forth in Tex. Civ. Prac. & Rem. Code § 154.024, or

any appropriate variation of such procedures, may be utilized pursuant to this rule: (a)

Mediation, (b) Mini-Trial, (c) Moderated Settlement Conference, (d) Summary Jury Trial,

or (e) Arbitration.

17.8 Discovery

The setting of a case and the corresponding referral to pre-trial mediation or other ADR

procedure does not automatically stay discovery under the Texas Rules of Civil Procedure.

Upon agreement of the parties or order of the court after notice and hearing, discovery may

be stayed.

17.9 Mediation

(a) Selection and Payment of a Mediator

(1) The ADR Coordinator shall compile and maintain a list of

mediators qualified pursuant to the Texas Alternative Dispute Resolution

Procedures Act, Tex. Civ. Prac. & Rem. Code § 154.001 et seq.

(2) The parties and their attorneys shall be responsible for

contacting the ADR Coordinator and cooperating in the selection of the

mediator(s). The parties may select by agreement any mediator who is on

the list of mediators maintained by the ADR Coordinator's office or who is

otherwise qualified pursuant to the Texas Alternative Dispute Resolution

Procedures Act, Tex. Civ. Prac. & Rem. Code § 154.001 et seq. If the


47

parties do not agree on a mediator they must either request the ADR

Coordinator to make a random selection of mediators from that list or

request the Court to assign a mediator.

(3) If the parties request the ADR Coordinator to select the

mediator, the ADR Coordinator shall give consideration to the nature of the

case and the areas of practice, experience, and expertise of the prospective

mediators.

(4) Upon selection of one or more mediators, the ADR

Coordinator shall send the name(s) of the mediators to each party or

counsel of record in the case. Any party may challenge a mediator for bias,

conflict of interest, or other appropriate cause. In the event such challenge

cannot be resolved by the ADR Coordinator and the parties by substitution

of another mediator or by other agreement, a dissatisfied party may file a

motion with the Court showing good cause why the mediation should not

proceed with the designated mediator(s).

(5) Payment of the mediator shall be by agreement of the

parties and the mediator. Failing such an agreement, the Court shall set a

fee pursuant to statute. If one or more of the parties objects to paying a

share of the cost of mediation, and the Court finds a reasonable basis for

that objection, the Court may instruct the ADR Coordinator to assist the

parties in the selection of a mediator willing to perform mediations on a

nominal fee or pro bono basis. If the parties are unable to obtain a nominal

cost or pro bono mediation they will report this fact to the ADR

Coordinator and to the court that heard the objection.

(b) Authority to Settle at Mediation

(1) All parties participating in mediation pursuant to this

chapter shall be prepared to negotiate openly and knowledgeably in a

mutual effort to reach a fair settlement.

(2) Each party, or a person with authority to settle the case on

a party's behalf, must be present during mediation, unless upon motion the

presence of such a person or party has been excused by order of the court.


48

(3) If a party is the state or a political subdivision, the party

shall have present an agent whose position is commensurate with the

premediation demand or offer and whose recommendation to approve a

mediated settlement will be meaningful to the person or body whose

approval of the mediated settlement is required.

(4) If a party thinks it unreasonable to have a person at the

mediation as required by (2) or (3), a premediation conference shall be held

with the mediator to negotiate who will be present at the mediation. If a

party thinks that some other party has not designated an agent in

compliance with this section, a premediation conference shall be held with

the mediator to negotiate who will be present at the mediation. If

attendance cannot be negotiated, a motion may be filed with the court to

resolve the issue.

(c) Before the Mediation

(1) The parties and their attorneys shall be responsible for

designating a date and time for the mediation. If the parties are unable to

agree upon a date, the ADR Coordinator shall set a date and time for the

mediation and notify the parties in writing, but the parties shall remain

responsible for compliance with the time limits set in Chapter 11 or the

requirements or time limits of any court order.

(2) At least 14 days before the mediation, unless otherwise

agreed, the Plaintiff shall provide the mediator and all other parties a brief

letter outlining their premediation demand and designating their agent for

purposes of the ADR procedures, pursuant to section 17.9(b)(2) or (3) of

this chapter.

(3) After receiving the premediation demand letter, and at

least 7 days before the date of mediation, unless otherwise agreed, all other

parties shall provide the mediator and other parties with a brief letter

outlining their offer and disclosing their agents pursuant to section

17.9(b)(2) or (3) of this chapter.

(4) The parties shall agree in advance upon the minimum

amount of time they will commit to mediation or the parties may agree in

advance to place that decision in the hands of the mediator. The minimum

amount of time shall be commensurate with the dispute. The Court expects


49

all mediators and all parties to commit sufficient time. If the parties cannot

agree, a premediation conference will be held with the mediator to negotiate

the time. If time cannot be negotiated, a motion may be filed with the court

to resolve the issue.

(d) Termination of the Mediation

The mediation shall be terminated: 1) by settlement; 2) by declaration of the

mediator of an impasse; or 3) by the passage of the time agreed upon in advance for

mediation, though the parties can agree to extend the time.

(e) After the Mediation

Within five days following the conclusion of the mediation, the mediator

shall file the ADR Certification Form promulgated by the ADR Coordinator. The

mediator shall not indicate the terms of any settlement or otherwise elaborate on the

proceedings.

17.10 Timing and Announcing of ADR

(a) The mediation or other ADR procedure should be completed not less than

45 days prior to the beginning of a jury trial, or 15 days prior to the beginning of a

non-jury trial. Upon agreement of the parties or order of the court, the time for

completion may be changed. Failure to comply with the time prescribed in this

paragraph may result in the case being moved to the bottom of the list of cases set

for the same date, as in Local Rule 3.4, or may result in striking the setting or other

appropriate order.

(b) When making an announcement for either a jury setting or a more than one-

half day setting during the announcement period as set out in Local Rules 3.1 and

3.2, the attorneys representing all parties shall include in their announcement of time

a statement as to whether or not mediation or another approved ADR procedure has

been completed.

17.11 Confidentiality of ADR

As provided in Tex. Civ. Prac. & Rem. Code § 154.073, a communication relating to the

subject matter of any civil or criminal dispute made by a participant in an ADR procedure is

confidential, is not subject to disclosure, and may not be used as evidence against the

participant in any judicial or administrative proceeding. Likewise, any nonbinding decision

on the merits or any record made at an ADR procedure is confidential, and the participants


50

or the third party facilitating the procedure may not be required to testify in any proceeding

relating to or arising out of the matter in dispute or be subject to process requiring disclosure

of confidential information or data relating to or arising out of the matter in dispute.

However, an oral communication or written material used in or made a part of an ADR

procedure is admissible or discoverable if it is admissible or discoverable independent of the

ADR procedure.

17.12 ADR Filings and Docket

(a) All notices, motions, and reports pertinent to the ADR procedure shall be

filed with the District Clerk, with copies sent to the ADR Coordinator.

(b) An ADR docket shall be held at a time specified by the court administratorto hear all motions presented under this chapter.

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