VOLUNTARY DISPUTE RESOLUTION PROGRAM
(a) Purpose and Scope.
(1) Purpose. Pursuant to 28 U.S.C. § 651 et seq., this Rule governs
the referral of certain actions to the Voluntary Dispute Resolution Program (“VDRP”) at
the election of parties. The VDRP allows participants to use a wide variety of alternative
dispute resolution (“ADR”) methods. Available methods include, but are not limited to,
mediation, negotiation, early neutral evaluation, and settlement facilitation. The specific
method used determined by the Neutral and the parties.
(2) Scope. This Rule applies to all civil actions except (i) prisoner
petitions and actions, including habeas corpus petitions, (ii) actions in which one of the
parties is appearing pro se, (iii) voting rights actions, (iv) social security actions, (v)
deportation actions, (vi) Freedom of Information Act actions, and (vii) actions involving
the constitutionality of federal, state or local statutes or ordinances.
(3) Parties Retain the Option of Securing ADR Services Outside
the Program Sponsored by the Court. Nothing in this Rule precludes the parties from
agreeing to use ADR services outside the VDRP.
(b) Program Administration.
(1) ADR Judge.
(A) Appointment. The Chief Judge shall appoint one or more
Judges or Magistrate Judges to serve as the ADR Judge of this Court. When
necessary or appropriate, the chief Judge shall appoint another Judge or Magistrate
Judge to perform the duties of ADR Judge temporarily.
(B) Duties. The ADR Judge shall serve as the liaison between
the Court and the VDRP staff, shall rule on all disputes resulting from a party’s request
to be excused from appearing at any VDRP proceeding, and shall hear and determine
all complaints alleging violations of this Rule.
(2) VDRP Administrator. The VDRP Administrator shall be
responsible for implementing, administering, overseeing, and evaluating the VDRP and
procedures covered by this Rule, including recruiting, screening, and training Neutrals.
(3) Rules and Materials Available. The Clerk shall make pertinent
rules and explanatory materials available to the parties.
(4) Parties May Request Referral to the VDRP at Any Time. Unless
ordered by the Court at the inception of a case, any party may ask the assigned Judge
or Magistrate Judge, at any stage in the proceedings, to refer the action, in whole or in
part, to the VDRP. The Court may enter an order of reference only if all parties
voluntarily agree to the proposed reference. For the purposes of this Rule, the phrase
“all parties” means all parties to an action or, when appropriate, all parties to a discrete
sub-part of an action such as a counterclaim or third-party action. The decision whether
to enter an order of reference is within the Court’s discretion and includes the
considerations set forth in this rule.
(c) Referral to the VDRP.
(1) Notice of Availability. The Clerk shall provide a notice of the
availability of the VDRP to all plaintiffs upon the filing of the complaint or to a party who
removes a case upon a removal.
(2) Consent of Parties Required. Unless ordered by the Court at the
inception of a case, actions may not be assigned to the VDRP over the objection of a
party. The Court may assign discrete sub-parts of an action to the VDRP if all parties to
the sub-part agree and any objecting party is not a party to the sub-part of the action to
be assigned to the VDRP.
(3) Request by the Parties. Parties may request referral to the VDRP
by filing a request reflecting the agreement of all affected parties. See L.R. 143; 271(i).
(d) Duty to Consider VDRP.
In every action to which this rule applies, the parties must confer about whether
they are willing to participate in the VDRP. The parties’ status report must include a
statement indicating that each party has carefully considered whether the action might
benefit from participation in VDRP.
(e) Panels of Neutrals; Selection of Neutrals.
(1) Panels of Neutrals. The VDRP Administrator shall maintain a
panel of persons who are trained and otherwise qualified to serve as Neutrals for the
VDRP.
(2) Parties to Confer About Selection of Neutral. If the parties
agree to participate in VDRP, they may, within fourteen (14) days of referral or as
otherwise ordered by the Court, propose a Neutral to conduct the VDRP session,
including, upon authorization from the Court, a Neutral who is not on the VDRP
Administrator’s panel.
(3) Assistance in Selecting Neutral. If the parties are unable to
agree upon a Neutral within fourteen (14) days of referral or as otherwise ordered by the
Court, they shall inform the VDRP Administrator, who shall supply a list of three (3)
potential Neutrals, from which list the parties shall agree upon one. The parties must,
within fourteen (14) days of receiving the list from the VDRP Administrator, notify the
VDRP Administrator, in writing, of their selection. If the parties are unable to agree
upon a Neutral or fail to communicate their selection, the VDRP Administrator may
designate a Neutral and shall so notify the parties. If a selected Neutral is unable or
unwilling to serve, the VDRP Administrator shall select and notify another Neutral.
(f) Disqualification of Neutrals.
(1) Applicable Standards. No person may serve as a Neutral in a
VDRP proceeding under this Rule in violation of:
(A) the standards set forth in 28 U.S.C. § 455;
(B) any applicable standard of professional responsibility or rule
of professional conduct; or
(C) any additional standards adopted by the Court.
(2) Mandatory Disqualification. The parties may not waive a basis
for disqualification that is described in 28 U.S.C. § 455(b). A Neutral who must recuse
under § 455(b) shall promptly notify the parties and the VDRP Administrator in writing.
(3) Disclosure and Waiver of Non-Mandatory Grounds for
Disqualification. If a prospective Neutral discovers a circumstance that may be
covered by 28 U.S.C. § 455(a) but does not compel disqualification under the rules of
professional conduct or under 28 U.S.C. § 455(b), the Neutral must promptly disclose
that circumstance in writing to all counsel and the VDRP Administrator. A party may
waive a basis for disqualification premised only on 28 U.S.C. § 455(a), in writing within
fourteen (14) days of receiving notification of the circumstance.
(g) Compensation of Neutrals. Neutrals shall serve without compensation.
(h) Immunity of Neutrals. All persons serving as Neutrals under this Rule
are deemed to be performing quasi-judicial functions and shall be immune to the extent
provided by 28 U.S.C. § 655(c) and applicable authorities.
(i) Stipulation and Order for VDRP Referral.
(1) File with Status Conference Report. If all parties agree to use
the VDRP, counsel must file with their Status Conference Reports, a request for VDRP
Referral, including a proposed deadline for completion of the VDRP process and a
description of any pretrial activity, e.g., specified discovery or motions, that will be
completed before the VDRP session is held.
(2) Assigned Judge’s Authority. The assigned Judge or Magistrate
Judge maintains authority over a case that has been referred to the VDRP.
(j) Communications by Neutral Before the VDRP Session. After a Neutral
has been appointed, the Neutral should communicate with the parties to determine the
details of the VDRP session, including a time and place for the session, whether the
session will be held in person or by remote videoconference, the mode of ADR to be
used, a schedule for the exchange and contents of written VDRP statements, materials
that will be provided to the Neutral, who will attend the session on behalf of each party,
and any other matters necessary to conduct the VDRP session.
(k) Written VDRP Statements.
(1) Service Deadline. Unless otherwise directed by the Neutral, at
least seven (7) days before the VDRP session, each party shall submit directly to the
Neutral and serve on all other parties a written VDRP statement not to exceed ten (10)
pages. Statements shall not be filed, and the assigned Judge or Magistrate Judge shall
not have access to them.
(2) The Content of the Statements. Unless otherwise directed by the
Neutral, each statement must:
(A) give a brief statement of the facts;
(B) identify the pertinent principles of law;
(C) identify the significant legal and factual issues that are in
dispute;
(D) identify any legal or factual issues whose early resolution
might reduce the scope of the dispute or contribute significantly to the productivity of
settlement discussions;
(E) identify by name and role with respect to the litigation and
the parties of the person(s) in addition to counsel who will attend the session as
representatives of the party filing the statement with decision-making authority; and
(F) identify or attach particular document(s) or other physical
evidence, if any, central to an understanding of the dispute and an appreciation of the
merits of each party’s case.
(l) Attendance at the VDRP Session.
(1) Attendance. All parties and their lead counsel, having authority to
settle and to adjust pre-existing settlement authority, are required to attend the VDRP
session unless excused under (l)(2). Insurer representatives also are required to
attend, unless excused, if their agreement would be necessary to achieve a settlement.
(A) Corporations and Other Non-Governmental Entities. A
corporation or other non-governmental entity satisfies this attendance requirement if
represented by a person who has, to the greatest extent possible, authority to settle,
and who is knowledgeable about the facts of the action and that party’s position in the
action.
(B) Governmental Entities. A governmental entity satisfies this
attendance requirement if represented by a person who has, to the greatest extent
possible, authority to settle, and who is knowledgeable about the facts of the action, the
governmental entity’s position in the action, and the procedures and policies under
which the governmental entity can enter, finalize, and perform settlements.
(2) Requests to be Relieved of Duty to Appear.
A party may be excused from attending a VDRP session only after
meeting and conferring with all other parties and making a request to the ADR Judge
with a showing that attendance would impose a serious and unjustifiable hardship.
(3) Participation by Video Conference When Appearance Is
Excused. Every person who is excused from attending a VDRP session in person
must be available to participate by video conference, unless otherwise directed by the
Neutral.
(m) Confidentiality of VDRP Proceedings.
(1) Generally applicable Provision. Except as otherwise required by
law or as stipulated in writing by all parties and the Neutral, all communications made in
connection with any VDRP proceeding under this Rule shall be privileged and
confidential to the fullest extent provided by applicable law.
(2) Limitations on Communication with Assigned Judge or
Magistrate Judge. No person may disclose to the assigned Judge or Magistrate Judge
any communication made, position taken, or opinion formed by any party or Neutral in
connection with any VDRP proceeding under this Rule except as
(A) stipulated in writing by all parties and the Neutral;
(B) provided in this Rule; or
(C) ordered by the court in connection with a proceeding to
determine:
(i) whether the parties entered an enforceable settlement
agreement at the end of the VDRP session, or
(ii) whether a person violated a legal norm, rule, court
order, or ethical duty during or in connection with the VDRP session.
(n) Neutral’s VDRP Completion Report.
No later than fourteen (14) days after the VDRP session has been concluded or
as otherwise ordered by the Court, the Neutral shall submit to the parties and the VDRP
Administrator the Neutral’s VDRP Completion Report indicating only the date on which
the parties completed the VDRP process.
(o) Parties’ Joint VDRP Completion Report.
No later than fourteen (14) days after the VDRP session has been concluded or
as otherwise ordered by the Court, the parties must jointly file the Parties’ Joint VDRP
Completion Report in which they report to the assigned Judge or Magistrate Judge
whether the action or any issues therein were resolved in whole or in part and any
additional relevant update concerning the status of the action.
(p) Violations of This Rule
(1) Complaints Alleging Material Violations. A complaint alleging
that any person or party has materially violated this rule must be presented in writing
directly to the ADR Judge or a Judge who has been designated by the Chief Judge to
hear the matter and to whom the underlying action is not assigned (the “designated
Judge”). Copies of any such complaint must be sent to all counsel and the Neutral at
the time they are presented. Any such complaint must be accompanied by a competent
affidavit, must not be filed or lodged, and must not be presented to the Judge or
Magistrate Judge to whom the underlying action is assigned for litigation.
(2) Proceedings in Response to Complaint. Upon receipt of a
complaint of material violation of this Rule, the ADR Judge or designated Judge shall
determine whether the matter warrants further proceedings. If further proceedings are
warranted, the ADR Judge or designated Judge may issue an order to show cause why
sanctions should not be imposed. Any such proceeding shall be conducted on the record,
and, if appropriate, may be conducted under seal.
