Alternative Dispute Resolution
Court requests that each party submit its ex parte letter no later than two weeks prior to the settlement conference. After experiencing unproductive settlement conferences
due to the failure of counsel or the parties to have engaged in any meaningful settlement discussions prior to the Court- supervised conference, many Magistrate Judges began to require that counsel exchange a settlement demand and response prior to the settlement conference. To that end, the Order often instructs the plaintiff to forward a written settlement demand to the defendant no later than one month prior to the conference. Te plaintiff ’s demand should particularize each category of damages claimed and the method by which it was calculated, as required by Fed. R. Civ. P. 26(a)(1)(C). Pursuant to the Order, within one week of receiving the plaintiff ’s demand, the defendant should respond by addressing each category of damages individually and providing sufficient evidentiary support for each response. Most importantly, to aid the Court during the mediation process, the parties should include all correspondence between them with the ex parte letters submitted two weeks prior to settlement. Given the importance of both the ex parte letter and settlement demands, if either party does not meet the prerequisites, the Magistrate Judge has the discretion to postpone or continue the settlement conference.
On the day of the actual conference, each party reports
to the judge’s chambers. In order to facilitate the settlement process, the Court requests, pursuant to Local Rule 607, that a person with “complete authority” be present for each party. See D. Md. Loc. R. 607. A person with “complete authority” is someone who has the experience and judgment to exercise that authority without having to consult with anyone who is not in attendance at the settlement conference. Te requirement that someone with complete authority attend the conference is vital to the success of the process, because it ensures that the ultimate decision maker personally is exposed to the discussions of the strengths and weaknesses of each party’s case, as well as the views of the presiding Magistrate Judge. While compliance with this requirement may be excused for good cause, it is not done as a routine matter. Despite the Court’s insistence that a representative with “complete authority” personally attend, this has proved to be challenging to enforce with respect to institutional parties such as corporations or governmental agencies, which sometimes send a “warm body” who attends the conference but who, in actuality, has no independent ability to change the party’s settlement position from what it was prior to the settlement conference. If the presiding Magistrate Judge believes a party did not send a representative with complete authority, the judge may order a second settlement conference,
14 Trial Reporter / Fall 2010
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