Other Types of Court Programs

Early Neutral Evaluation (ENE). Like mediation, ENE is applicable to many types of civil cases, including complex disputes. In ENE, a neutral evaluator a private attorney expert in the substance of the dispute holds a several-hour confidential session with parties and counsel early in the litigation to hear both sides of the case. Afterwards, the evaluator identifies strengths and weaknesses of the parties'' positions, flags areas of agreement and disputes, and issues a non-binding assessment of the merits of the case.

Developed during the mid-1980''s in the San Francisco federal court, ENE is now used in 18 federal district courts and several state courts. Usually, attorneys trained by the court serve as evaluators; in some courts, including the Southern District of California, magistrate judges conduct ENE sessions.

Originally designed to make both case management and settlement more efficient, ENE has evolved into a pure settlement device in some courts. Used this way, ENE resembles evaluative mediation, in which the mediator uses case evaluation as a settlement tool.

Summary Jury Trial. The summary jury trial is a non-binding ADR process used to promote settlement in trial-ready cases headed for protracted jury trials. Usually a judge or magistrate judge presides over the SJT; occasionally, a neutral attorney conducts the process. Part or all of a complex dispute may be submitted to a summary jury trial. After an abbreviated hearing in which counsel present evidence in summary form, the jury renders an advisory verdict. Non-binding, it becomes the basis for subsequent settlement negotiations. If the parties do not reach a settlement, the case proceeds to trial.

Because they are costly, SJTs are used relatively rarely. Typically, the SJT is reserved for large cases when other settlement efforts have failed and litigants differ significantly about jury outcome.

Appellate ADR. Mediation programs have become increasingly popular among the nation''s appeals courts. Each of the 12 federal circuits either has a settlement office or plans to open one shortly. One the state level, at least 50 appeals courts have used mediation at some time, and approximately 25 courts currently have active programs.

Unlike trial-level ADR, which ranges from mandatory arbitration to multi-door courthouses, appellate programs tend to look very similar. In most programs, staff attorneys or outside lawyers conduct mandatory, pre-argument conferences in those cases that seem most likely to settle. Some appellate programs are geared exclusively toward settlement, while other programs also address case management and procedural issues.

Judge-Hosted Settlement Conferences. The most common form of ADR used in federal and state courts is the settlement conference presided over by a judge or magistrate judge. Almost 94 of the federal district courts use judicial settlement conferences routinely, and nearly one-third of the courts assign this role almost exclusively to magistrate judges.

The classic role of the settlement judge is to articulate judgments about the merits of the case and to facilitate the trading of settlement offers. Some settlement judges and magistrate judges also use mediation techniques in the settlement conference to improve communication among the parties, probe barriers to settlement, and assist in formulating resolutions. In some courts, a specific judge or magistrate judge is designated as settlement judge. In others, the assigned judge (or another judicial officer who will not hear the case) hosts settlement conferences at various points during the litigation, often directly before trial.

Court Minitrial. The minitrial is a flexible, non-binding settlement process primarily used out of court. During the past decade, some federal district judges have used their own version of the minitrial. Like the summary jury trial, the court minitrial is a relatively elaborate ADR method generally reserved for large disputes.

In a typical court minitrial, each side presents a shortened form of its best case to settlement-authorized client representatives usually senior executives. The hearing is informal, with no witnesses and a relaxation of the rules of evidence and procedure. A judge, magistrate judge or non-judicial neutral presides over the one- or two-day hearing. Following the hearing, the client representatives meet, with or without the neutral adviser, to negotiate a settlement. At the parties'' request, the neutral advisor may assist the settlement discussions by acting as a facilitator or by issuing an advisory opinion. If the talks fail, the parties proceed to trial.

Case Valuation. ("Michigan Mediation"). This hybrid ADR process provides litigants in trial-ready cases with a written, non-binding assessment of the case''s judgment value, delivered by a panel of three attorneys with subject-matter expertise after a very short hearing. If the panel''s valuation is accepted by all parties, the case is settled for that amount. If any party rejects the panel''s assessment, the case proceeds to trial.

Used only in the federal and state courts in Michigan, the arbitration-like valuation process is known widely by the misnomer "Michigan Mediation." Established in the Michigan state courts almost 20 years ago, today the process is used mainly for money-only contract, personal injury and civil rights cases.

Multi-door Courthouse or Multi-Option ADR. This term describes courts that offer an array of dispute resolution options or screen cases and then channel them to particular ADR methods. Some multi-door courthouses refer all cases of certain types to particular ADR programs, while others offer litigants a menu of options in each case. Multi-door courthouses have been established in state courts in New Jersey, Texas, Massachusetts, and the District of Columbia. On the federal level, courts in the Western District of Missouri, the Northern District of California, the District of Rhode Island, and others now have multi-option ADR.

Settlement Week. In a typical settlement week, a court suspends normal trial activity and, aided by bar groups and volunteer lawyers, devotes itself to the mediation of long-pending civil cases. Mediation is the mainstay ADR method in a typical settlement week. Volunteer lawyers conduct mediations in courtrooms, conference rooms and other areas of the courthouse. Sessions may last an hour or two, with additional sessions held as needed. Unresolved cases return to the court''s docket.

Settlement weeks are used regularly only in two federal district courts. The process is used more widely in state courts and a few federal courts send cases to settlement weeks sponsored by local state courts.

Private Judging. Private judging is a general term used to describe a private or court-related process in which disputing parties empower a private individual to hear and decide their case. The procedure may be exclusively a matter of contract between the parties or may be undertaken in connection with an authorizing statute. When authorized by statute, the process is sometimes referred to by the colloquial term, "Rent-a-Judge."

CPR Institute for Dispute Resolution, 2000