Alternative Dispute Resolution
Alternative Dispute Resolution in the District of Maryland
Judge Paul W. Grimm Melissa O'Toole-Loureiro & Lisa M. Yurwit
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n 1990, in an attempt to facilitate resolution of civil cases by means other than time consuming and costly litigation, Congress enacted the Civil Justice Reform
Act of 1990 (CJRA), mandating that each United States district court implement a civil justice and delay reduction plan. 28 U.S.C. §§ 471-482 (1990). After the CJRA sunset in 1997, Congress passed the Alternative Dispute Resolution Act of 1998, authorizing alternative dispute resolution in United States district courts and requiring each district court to devise and implement its own alternative dispute resolution program. 28 U.S.C. §§ 651-658 (1998). In response to the Alternative Dispute Resolution Act of 1998, the United States District Court for the District of Maryland passed Local Rule 607 and “authorize[d] the use of all alternative dispute resolution processes in civil actions,” for which Magistrate Judges would “constitute the panel of neutrals made available by the Court.” D. Md. Loc. R. 607. Te local rule memorialized what long had been the practice in the District of Maryland, the use of Magistrate Judges to conduct settlement conferences in civil cases pending before the Court. Judging from the requests by counsel for referral of civil cases to Magistrate Judges for settlement, the local rule has been a success, as Maryland’s Magistrate Judges are referred, on average, 536 settlements per year. Given the popularity of the program and the ever-shrinking number of civil cases that actually go to trial, it is unlikely that this trend will diminish any time soon.
Once a case is referred to a Magistrate Judge for
settlement, each party receives an Order Scheduling Settlement Conference. Te Order provides each party with detailed prerequisites that the parties must fulfill prior to the commencement of the settlement conference. Of the prerequisites, the most important is a request for each party to submit a short (generally not to exceed five pages) ex parte1
letter to the Court. Te letter provides each party with
the opportunity to present its side of the case to the judge before meeting in person and allows the judge to gain a more thorough understanding of the facts and legal issues that may arise during the course of the conference. Briefly, each party sets forth the following: (1) the facts it believes that it can prove at trial, (2) the major weaknesses, both factual and legal, in each side’s case, (3) a reference to any pending dispositive motions that would have a significant effect on settlement, (4) an evaluation of likely damage awards, (5) the history of any prior settlement negotiations, and (6) an estimate of attorney’s fees and costs of litigation through trial. Although some exceptions are permitted for extenuating circumstances
and cases scheduled for settlement on an expedited basis, the 1 Because settlement referrals are made to a different judge than the trial judge, ex parte submissions are permitted.
Trial Reporter / Fall 2010 13
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