United States District Court
Northern District of Illinois
Western Division
LOCAL RULES FOR
ALTERNATIVE DISPUTE RESOLUTION
Table of Contents
1. PURPOSE AND SCOPE OF RULES ..................................................................................... 1
1-1. Title. ..................................................................................................................................... 1
1-2. Purpose and Scope. .............................................................................................................. 1
2. GENERAL PROVISIONS ...................................................................................................... 2
2-1. ADR Unit........................................................................................................................... 2
2-2. ADR Magistrate Judge. ...................................................................................................... 2
2-3. Referral to ADR Mediation Program. ................................................................................ 2
2-4. Mediators. ........................................................................................................................... 3
2-5. Evaluation of ADR Programs. ............................................................................................ 4
3. CERTIFYING THE ADR MEDIATION PROCESS ............................................................. 4
3-1. Meet and Confer to Select ADR Mediation Process. ......................................................... 5
3-2. ADR Certification............................................................................................................... 5
3-3. Conference. ......................................................................................................................... 5
4. MEDIATION........................................................................................................................... 5
4-1. Description.......................................................................................................................... 6
4-2. Eligible Cases. .................................................................................................................... 6
4-3. Mediators. ........................................................................................................................... 6
4-4. Timing and Scheduling the Mediation. .............................................................................. 7
4-5. Request to Extend the Deadline.......................................................................................... 7
4-6. Contact with the Mediator before the Session. ................................................................... 7
4-7. Written Mediation Statements. ........................................................................................... 8
4-8. Attendance at Session. ........................................................................................................ 9
4-9. Procedure at Mediation. .................................................................................................... 10
4-10. Confidentiality. ............................................................................................................... 10
4-11. Follow Up. ...................................................................................................................... 11
4-12. Certification of Session. ................................................................................................. 11
4-13. Violation of the ADR Local Rules. ................................................................................ 11
1. PURPOSE AND SCOPE OF RULES
1-1. Title.
These are the Local Rules for Alternative Dispute Resolution Mediation in the
United States District Court for the Northern District of Illinois, Western Division.
They should be referred to as “ADR L.R. _______.”
1-2. Purpose and Scope.
(a) Purpose. The court recognizes that full, formal litigation of claims can impose
large economic burdens on parties and can delay resolution of disputes for
considerable periods. The court also recognizes that sometimes an alternative
dispute resolution procedure can improve the quality of justice by improving the
parties’ clarity of understanding of their case, access to evidence, and satisfaction
with the process and result. The court adopts these ADR Local Rules to make
available to litigants a court-sponsored ADR mediation process to provide quicker,
less expensive, and potentially more satisfying alternatives to continuing litigation
without impairing the quality of justice or the right to trial.
Commentary
The Alternative Dispute Resolution Act of 1998, 28 U.S.C. Sections 651-658,
requires each federal district court to authorize by local rule the use of at least one
ADR process in all civil actions. In accordance with § 651(c), the court has
examined the effectiveness of its ADR programs and has adopted improvements
consistent with the Act.
(b) Scope. These ADR Local Rules became effective January 3, 2003, are revised
as of May 27, 2016, and shall govern actions pending or commencing on or after
the date revised. These rules supplement the Local Civil Rules of the court and,
except as otherwise indicated, apply to appropriate original civil actions as
determined by the court with the aid of the parties, but not including actions
involving pro se litigants, mortgage foreclosures, social security, prisoner civil
rights, student loan default, and bankruptcy appeals.
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2. GENERAL PROVISIONS
2-1. ADR Unit.
(a) Staff and Responsibilities. Reserved.
2-2. ADR Magistrate Judge.
The Judges of the Western Division will designate a United States Magistrate
Judge as the ADR Magistrate Judge. The ADR Magistrate Judge is responsible for
working with the Clerk’s Office staff assigned to work on the ADR program,
consulting with the mediators on matters of policy, program design and evaluation,
education, training, and administration. The ADR Magistrate Judge shall rule on
all requests to be excused from appearing in person at mediation sessions and hear
and determine all complaints alleging violations of these ADR Local Rules. When
necessary, the District Judge for the Western Division, to whom the case is
assigned, will perform, temporarily, the duties of the ADR Magistrate Judge.
When the term “court” or “judge” appears in the balance of these rules, the term
includes the ADR Magistrate Judge.
2-3. Referral to ADR Mediation Program.
(a) Referral. Cases may be referred to the court’s mediation program by
agreement of the parties or by the court at the time of entry of the case
management order, as ordered by the court pursuant to Local Civil Rule 26.1. The
case management order shall also specify the time frame in which the ADR
process will be completed. The court may stay discovery for a reasonable period
of time to facilitate the mediation process. A case not referred to mediation at the
time of entry of the case management order may be referred to mediation at any
time before trial by agreement of the parties or by order of the court.
The court, in considering whether a case is appropriate for referral to mediation,
will consider the likelihood that mediation will be beneficial, the burden imposed
on the parties by mediation, the additional costs to the parties, and the
recommendations of the parties. If the judge at the case management conference
determines that mediation is not likely to deliver benefits to the parties sufficient to
justify the resources consumed by its use, the judge will exempt the case from
participating in any ADR process.
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Commentary
These Rules are intended to reflect the consensus of the committee and the court
that mediation become part of the case management process and that, like the case
management process, there be flexibility in the use of Court annexed alternative
dispute resolution. It is the intent of these Rules that the court, working with the
parties, may refer cases to mediation at any time before trial, but most frequently,
at the time of entry of the case management order. Additionally, the court should
have the authority to stay (for reasonable periods) discovery or other litigation
transactions to reduce the costs to parties and facilitate mediation. Alternatively,
the court should be able, in appropriate cases, to stay the mediation process.
Nothing in these Rules is intended to limit the court’s ability to conduct
settlement conferences pursuant to Fed. R. Civ. P. 16. Further, the committee
recommends that the Local Rules governing ADR in the Western Division be
interpreted by the court with flexibility in allowing the parties the alternative of
electing private avenues of alternative dispute resolution such as private
arbitration or mediation.
(b) Complementary Alternative Dispute Resolution. These Local Rules are not
intended to limit the court or the parties from engaging in ADR outside of the
court’s mediation program. The court will have the authority to engage the parties
in accordance with Fed. R. Civ. P. 16. Additionally, the court may, at its discretion,
allow the parties a reasonable opportunity to participate in private ADR. Private
ADR proceedings are not subject to the enforcement, immunity, or other
provisions of the ADR Local Rules.
(c) Relief from Court Ordered Mediation. Any party whose case has been
ordered to mediation may file with the ADR Magistrate Judge, within 14 calendar
days of court ordered referral, a motion for relief from the court ordered referral.
The party seeking relief must demonstrate that mediation would not be likely to
deliver benefits to the parties sufficient to justify the resources consumed by its use
and/or would impose an undue hardship upon the moving party and/or would
unnecessarily increase litigation costs. The parties may e-file a joint motion under
this Rule.
2-4. Mediators.
(a) Panel. The Clerk’s Office will maintain a panel of mediators serving the
court’s ADR mediation programs. Mediators will be selected from time to time by
the court from applications submitted by lawyers willing to serve or by other
persons as set forth below. The ADR Director and ADR Program Counsel may
serve as mediators. The panel of mediators must be available on the website for
the court at http://www.ilnd.uscourts.gov.
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(b) Qualifications and Training. Each lawyer serving as a mediator in a court
ADR program must be a member of the bar of this court or a member of the faculty
of an accredited law school and successfully complete initial and periodic training
as required by the court. Additional mandatory minimum requirements for serving
on the court’s panel include admission to the practice of law for at least 7 years and
knowledge of civil litigation in federal court. Mediators must possess strong
mediation skills and the temperament and training to listen well, facilitate
communication across party lines, and assist the parties with settlement
negotiations. Mediators who are not lawyers may also be selected to serve on the
court’s panel of mediators if they have appropriate professional credentials in
another discipline and are knowledgeable about civil litigation in federal court.
The court may modify, in individual circumstances for good cause, all of the
requirements of this paragraph.
(c) Oath. Persons serving as mediators in any of the Court’s ADR programs are
required to take the oath or affirmation prescribed in 28 U.S.C. § 453. The
mediator is required to email the executed copy of the oath to ADR Coordinator.
(d) Disqualification of Mediators. No person may serve as a mediator in a case
in a court ADR program in violation of the standards set forth in 28 U.S.C. §455.
(e) Immunities. All persons serving as mediators in any of the Court’s ADR
programs are performing quasi-judicial functions and are entitled to the immunities
and protections that the law accords to persons serving in such a capacity.
2-5. Evaluation of ADR Programs.
Congress has mandated that the court’s ADR programs be evaluated. To facilitate
evaluation of the programs, mediators, counsel, and clients must promptly respond
to any inquiries or questionnaires from persons authorized by the Court.
Responses to such inquiries will be confidential and will be used for research and
monitoring purposes only.
3. CERTIFYING THE ADR MEDIATION PROCESS
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3-1. Meet and Confer to Select ADR Mediation Process.
After the filing of a civil case or its removal to the District Court, counsel must
confer and attempt to agree on an ADR mediation process, including the selection
of a mediator from the court’s panel of mediators as found on the court’s website at
http://www.ilnd.uscourts.gov. At the initial case management conference before
the court, counsel are expected to report to the court on whether agreement on
court referred mediation has been reached and whether a mediator has been
selected.
3-2. ADR Certification.
Unless otherwise ordered, and no later than the date specified in the case
management order, the parties, through their attorneys, must e-file with the court a
certification indicating:
(a) each has read the Local Rules and pamphlet governing the court’s mediation
program;
(b) the attorneys have discussed with their respective clients the available dispute
resolution options provided by the court and private entities;
(c) an estimate of the fees and costs that would be associated with litigation of the
matter, through trial, has been given to the client; and
(d) When applicable, the mediator has been selected by the parties and the date of
mediation or the other method of ADR selected is identified.
This certification may be contained in the body of the CMO.
3-3. Conference.
If counsel are unable to agree on the selection of a mediator from the court’s panel
of available mediators, the court shall assist the parties in the selection of a
mediator.
4. MEDIATION
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4‐1. Description.
Mediation is a flexible, non-binding, confidential process in which a neutral person
(the mediator) facilitates settlement negotiations. The mediator improves
communication across party lines, helps parties articulate their interests and
understand those of their opponent, probes the strengths and weaknesses of each
party’s legal positions, identifies areas of agreement, and helps generate options for
a mutually agreeable resolution to the dispute. A hallmark of mediation is its
capacity to expand traditional settlement discussion and broaden resolution
options, often by exploring litigant needs and interests that may be formally
independent of the legal issues in controversy. Consistent with the principles of
impartiality and party self-determination, a mediator may be expected, in
appropriate cases, to offer the parties frank and confidential evaluations of the
relative strengths, weaknesses, and risks of their respective cases.
4-2. Eligible Cases.
Appropriate civil cases may be referred to mediation by order of the judge
following a stipulation by all parties, on motion by a party, or on the judge’s
initiative.
4-3. Mediators.
(a) Appointment. A list of mediators on the ADR panel will be maintained on
the court’s website (http://www.ilnd.uscourts.gov) and, after agreement of the
parties that the case should be referred to mediation or entry of an order referring a
case to mediation, the parties should select a mediator or seek the assistance of the
court in choosing a mediator for appointment as the mediator for the case. The
mediator will conduct a conflict check to determine the absence of any conflicts.
(b) Compensation. Mediators shall be compensated at their usual customary
rates or such other rate that all parties agree to pay. Compensation of the mediator
will be agreed upon by the parties and the mediator before mediation. If the parties
fail to reach an agreement before mediation, the parties will share the cost of the
mediator on a pro rata basis, or as determined by the Court. Mediators may charge
for reasonable time used to prepare for mediation. No party may offer or give the
mediator any gift.
(c) Payment. All terms and conditions of payment must be clearly communicated
to the parties. The parties may agree to pay the fee in other than equal portions.
The parties shall pay the mediator directly.
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4-4. Timing and Scheduling the Mediation.
(a) Scheduling by Mediator. Promptly after being selected for a case, the
mediator is responsible for arranging the pre-mediation conference under ADR
L.R. 4-6 and, after consulting with all parties, fixing the date and place of the
mediation within the deadlines set by paragraph (b) below, or the order referring
the case to mediation. Counsel must promptly respond to and cooperate fully with
the mediator with respect to scheduling the pre-session phone conference and the
mediation session.
(b) Deadline for Conducting Mediation. Unless otherwise ordered, the
mediation must be held within 60 days after entry of the case management order or
the order of referral, whichever is appropriate.
4-5. Request to Extend the Deadline.
(a) Motion Required. Requests for extension of the deadline for conducting a
mediation must be e-filed to the ADR Magistrate Judge, with a paper copy to the
the mediator (if selected).
(b) Content of Motion. Such motion shall:
(1) detail the considerations that support the request;
(2) indicate whether the other parties concur in or object to the request; and
(3) be accompanied by a proposed order, emailed to the proposed order
e-mail, setting forth a new deadline by which the mediation must be held.
4-6. Contact with the Mediator before the Session.
The mediator may schedule a brief joint conference with counsel before the
mediation session to discuss matters such as the scheduling of the mediation, the
procedures to be followed, the nature of the case, which client representatives will
attend, and if the ADR L.R. 4-7 written statements should be exchanged by
counsel. Under appropriate circumstances, ex parte conferences with the parties
before the mediation may be helpful. Such ex parte conferences may occur if all
parties consent.
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4-7. Written Mediation Statements.
(a) Time for Submission. No later than 10 calendar days before the first
mediation session, or in the time established by the mediator, each party must
submit directly to the mediator, a written mediation statement. The statement may
be transmitted solely to the mediator. Whether the statement will be sent solely to
the mediator, or exchanged by the parties, will be determined at the ADR L.R. 4-6
conference.
(b) Prohibitions against Filing. The statements must not be filed.
(c) Content of Statement. The statements must be concise, no more than five
pages in length, and may include any information that may be useful to the
mediator and, unless directed otherwise by the mediator:
(1) identify, by name and title or status:
(A) the person(s) with decision-making authority, who, in addition to
counsel, will attend the mediation as representative(s) of the party,
and
(B) persons connected with a party opponent (including an insurer
representative) whose presence might substantially improve the utility
of the mediation or the prospects for settlement;
(2) describe briefly the substance of the suit, addressing the party’s views of
the key liability issues and damages and discussing the key evidence;
(3) identify the discovery or motions that promise to contribute most to
equipping the parties for meaningful settlement negotiations;
(4) describe the history and current status of any settlement negotiations and
provide any other information about any interests or considerations not
described elsewhere on the statement that might be pertinent to settlement;
and
(5) include copies of documents likely to make the mediation more
productive or to materially advance settlement prospects.
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4-8. Attendance at Session.
(a) Parties. All named parties and their counsel are required to attend the mediation
unless excused under paragraph (d) below. With the prior permission of the court, a
party, or multiple parties represented by the same counsel, may appear through a
representative so long as the party’s representative is authorized to negotiate
settlement on behalf of the party. This requirement reflects the court’s view that the
principal values of the mediation include affording litigants opportunities to articulate
directly to the other parties and a neutral, their positions and interests and to hear,
first hand, their opponent’s version of the matters in dispute. Mediation also enables
parties to search directly with their opponents for mutually agreeable solutions.
(1) Corporation or Other Entity. A party other than a natural person (e.g., a
corporation or an association) satisfies this attendance requirement if
represented by a person (other than outside counsel) who has the authority to
negotiate settlement and who is knowledgeable about the facts of the case.
(2) Government Entity. A unit or agency of government satisfies this
attendance requirement if represented by a person who has, to the greatest
extent feasible, authority to negotiate settlement, and who is knowledgeable
about the facts of the case, the governmental unit’s position, and the
procedures and policies under which the governmental unit decides whether to
accept proposed settlements. If the action is brought by the government on
behalf of one or more individuals, at least one such individual also must attend.
(b) Counsel. The attorney of record for each party is responsible for being present
with their client at the mediation.
(c) Insurers. Insurer representatives are required to attend in person unless excused
under paragraph (d) below, if their agreement would be necessary to achieve a
settlement.
(d) Request to be Excused. A person who is required to attend mediation may be
excused from attending in person only after a showing that personal attendance
would impose an extraordinary or otherwise unjustifiable hardship. A person seeking
to be excused must submit, no fewer than 15 calendar days before the date set for the
mediation, an electronically filed motion and supply a copy to the mediator. The
motion shall:
(1) set forth all considerations that support the request;
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(2) state realistically the amount in controversy in the case;
(3) indicate whether the other party or parties join in or object to the request,
and
(4) be accompanied by a proposed order.
(e) Participation by Electronic Means. A person excused from appearing in
person at a mediation must be available to participate by electronic means.
4-9. Procedure at Mediation.
(a) Procedure. The mediation shall be informal. Mediators have discretion to
structure the mediation so as to maximize the benefits of the process.
(b) Separate Caucuses. The mediator may hold separate, private caucuses with
each side or each lawyer or, if the parties agree, with the clients only. The mediator
may not disclose communications made during such a caucus to another party or
counsel without the consent of the party who made the communication.
4-10. Confidentiality.
All materials exchanged and statements made as part of the mediation process
conducted pursuant to these rules are confidential. The Court recognizes that Illinois’
Mediation Act conflicts with this aspect of the rules. Any mediation conducted under
the auspices of this ADR Mediation Program govern, not the Illinois statute.
Commentary
See, Fed. R. Evid. 408; 28 U.S.C. § 652(d). Full and candid discussion is
essential to successful resolutions in mediation. Such discussion is best supported
by an assurance that mediation communications will be held in strictest
confidence. The law may provide some limited circumstances in which the need
for disclosure outweighs the importance of protecting the confidentiality of a
mediation, e.g., threats of death or substantial bodily injury (see OR. Rev. Stat.
Section 36.220(6); use of mediation to commit a felony (see Colo. Rev. Stat.
Section 13-22-307); right to effective cross examination in a quasi-criminal
proceeding (see Rinaker v. Superior Court, 62 Cal. App 4th 155 (3d. Dist. 1998));
lawyer duty to report misconduct (see In re Waller, 573 A.2d 780 (D.C. App.
1990)).
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4-11. Follow Up.
If a mediation conference does not result in an agreed upon resolution of the case at
the close of the mediation session, the mediator and the parties must jointly determine
whether it would be appropriate to schedule a follow up session. Such follow up
could include, but need not be limited to, written or telephonic reports that the parties
might make to one another or to the mediator, exchange of specified kinds of
information, or another mediation session. The mediator may, to the extent agreed
upon by the mediator, the parties, and the court, stay involved in the case following
mediation and up to the time of trial to continue to facilitate resolution.
4-12. Certification of Session.
Within 14 calendar days of the close of each mediation session and on the form
Certification of Session provided by the court, the mediator must email a report to
[email protected] indicating: the date the session was held, whether the case
settled in whole or in part, whether any follow-up is scheduled, any stipulations the
parties agree may be disclosed, and any other data necessary for the effective
management of the program which would not violate expectations of confidentiality.
Within the same 14 calendar days, if a settlement was reached, the mediator shall
assist the parties in drafting a settlement agreement and a stipulation to dismiss
which, once executed, is then electronically filed with the court.
4-13. Violation of the ADR Local Rules.
(a) Reporting Violation.
(1) Complaints Alleging Material Violations. A complaint alleging that any
person or party, including the mediator, has materially violated any of the
ADR Local Rules shall be presented in writing directly to the ADR Magistrate
Judge. Such a letter of complaint must be accompanied by a competent
declaration. Copies of the letter of complaint and declaration must be sent
contemporaneously to all other parties, the mediator (if identified) and the
Clerk of Court. The letter of complaint and declaration shall not be filed in the
case.
(2) Report by Mediator. A mediator who perceives a material violation of
these ADR Local Rules shall make a written report directly to the ADR
Magistrate Judge and contemporaneously provide copies to all counsel and to
the Clerk of Court. Such report shall not be filed in the case.
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(b) Proceeding in Response to Complaint or Report of Violation and Sanctions.
If, upon receiving an appropriately presented and supported complaint or report of a
material violation of these ADR Local Rules, the ADR Magistrate Judge must order a
party to file a formal appropriate motion with the court, which will then be heard by
the Executive Committee of the Northern District of Illinois. All parties will be
allowed to participate at the hearing and present appropriate evidence.
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