Alternative Dispute Resolution
each party’s monetary demands towards a meeting point. Where a plaintiff may demand an exorbitant dollar amount and a defendant may offer nothing in response, the judge’s role is to mediate and offer legal insight when necessary to coax the parties towards settlement. While some cases may reach an amicable resolution in as short as a few hours, some cases may involve multiple conferences. Consequently, the number of arbitration referrals the Court receives each year is not necessarily representative of the number of settlement conferences that actually take place. One of the most appealing aspects of alternative dispute
resolution is the complete confidentiality of the process. Local Rule 607 governs the strict confidentiality of alternative dispute resolution proceedings and provides, in important part: “No disclosure shall be made to anyone, including the judicial officer to whom the case is assigned, of any dispute resolution communication that in any respect reveals the dispute resolution positions of the parties or advice or opinions of neutrals.” Te guarantee of confidentiality is essential to the
At some point during the settlement conference, the
parties can expect to adjourn to separate rooms where they are able to meet with the judge individually and in complete privacy. At this stage of the process, the judge may speak candidly with each party about the factual and legal strengths and weaknesses of its case. In part, the judge’s goal is to provide each party with a realistic idea of what sort of resolution it may expect from the settlement process, based on the judge’s experience with similar cases assigned to the Magistrate Judge for all proceedings, and the judge’s experience with how similar cases have been resolved in the District of Maryland. It is also during this time that the judge may attempt to get a feel for what the case means to each party and how that could affect the negotiations. As some cases may be intensely personal to the parties involved and may be about more than just obtaining monetary compensation, the judge is best able to facilitate the negotiations if he has some understanding of what is driving each party. Tis is a vitally important part of each settlement—the opportunity for each party to tell a judge what the case means to that party. Given the fact that fewer than 2% of civil cases are tried in federal court, this may be the only opportunity the party has to address a judge. As the conference progresses, the judge usually moves between one party and the other in an attempt to bring
16 Trial Reporter / Fall 2010
settlement process because it assures the parties that should mediation fail and litigation commence, they will not be penalized for speaking candidly about the strengths and weaknesses of their side of the case. In addition to prohibiting the disclosure of confidential dispute resolution communications, Local Rule 607 renders all communications made throughout the process inadmissible in any subsequent proceeding except as permitted by the Federal Rules of Evidence. D. Md. Loc. R. 607. Fed. R. Evid. 408 governs the admissibility of communications made during compromise negotiations and as paraphrased in Ausherman, 212 F. Supp. 2d 435, states that:
Evidence of conduct or statements made in compromise negotiations for claims that are disputed as to either validity or amount are not admissible to prove liability or invalidity of the claim, but not inadmissible if offered for some other purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Id. at 454 (emphasis in Ausherman). Te Ausherman Court said that “evidence is not ‘admissible’ or ‘inadmissible’ as if occupying some never-changing solid, liquid, or gas-like physical state governed by an inflexible disjunctive natural law, but instead is admissible or inadmissible, depending on the purpose for which it was offered.” Id. at 454-55 (emphasis in Ausherman). Tus,
Te sole prohibition in the rule is the use of settlement statements for the purpose of proving the validity/ invalidity or the amount of a disputed claim and use
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