(a) Eligible Cases. Any civil case may be referred to E.N.E.
(b) Selection of Cases. A case may be selected for E.N.E.:
(1) By the Court at the Case Management Conference (See Local Rule
16.1(b)(2)); or
(2) At any time:
(A) By the Court on its own motion, in consultation with the
parties;
(B) By the Court, on the motion of one of the parties; or
(C) By stipulation of all parties.
(c) Administrative Procedure.
(1) Upon notice that a case has been referred for court-annexed E.N.E.,
the ADR Administrator will promptly provide the parties with a Notice of
Referral, listing of available panelists who are qualified to deal with the subject
matter of the lawsuit. The parties shall confer with each other within ten (10)
days after receiving the written Notice of Referral and provide the ADR
Administrator with an agreed list of three proposed evaluators, ranked in order of
preference. In the event of multiple parties not united in interest, the parties shall
add the name of one proposed evaluator for each such additional party.
If the parties fail to provide the ADR Administrator with an agreed list of
at least three proposed evaluators, the ADR Administrator shall select from the
list of available panelists provided to the parties an evaluator who is qualified to
deal with the subject matter of the lawsuit. The ADR Administrator shall make a
preliminary determination that the proposed evaluator has no conflicts of interest
and that the proposed evaluator can serve.
Nothing in this Rule shall limit the right of the parties, with consent of the
Court, to select a person of their own choosing to act as an evaluator hereunder.
(2) The ADR Administrator shall contact the proposed evaluator(s), in
the order of preference provided by the parties, concerning potential conflicts of
interest and scheduling. Once a determination has been made that a proposed
evaluator can serve, the ADR Administrator shall provide written Notice of
Designation (which shall include the name, address and telephone number of the
chosen panelist, hereafter, the “Evaluator”) to counsel for all parties (or to parties
not yet represented by counsel) and to the Evaluator. If, after Notice of
Designation is given or sent, a new party is joined in the action, the ADR
Administrator shall promptly send that new party a copy of the Notice of
Designation.
(3) Promptly after receiving the Notice of Designation, the Evaluator shall
schedule the evaluation session which, unless otherwise ordered by the Court,
shall be not more than thirty (30) days from the date of the written Notice of
Designation. The Evaluator shall send written notice to all parties and to the
ADR Administrator advising them as to the date, time and location of the
evaluation session.
(4) Without leave of Court, neither the parties nor the neutral may modify
the time allowed for completing an ADR process.
(d) Neutrality of Evaluator. If at any time the Evaluator becomes aware of or a
party raises an issue with respect to the Evaluator's neutrality because of some interest in
the case or because of a relationship or affiliation with one of the parties, the Evaluator
shall disclose the facts with respect to the issue to all of the parties. If a party requests
that the Evaluator withdraw because of the facts so disclosed, the Evaluator may
withdraw and request that the ADR Administrator appoint another evaluator. If the
Evaluator determines that withdrawal is not warranted, the Evaluator may elect to
continue. The objecting party may then request the ADR Administrator to remove the
Evaluator. The ADR Administrator may remove the Evaluator and choose another from
the Federal Court Panel. If the ADR Administrator decides that the objection is
unwarranted, the evaluation session shall proceed as scheduled, or, if delay was
necessary, as soon after the scheduled date as possible.
(e) Written Submissions to the Evaluator.
(1) No later than five (5) days before the evaluation session, each party
shall submit to the Evaluator and serve on all other parties a written evaluation
statement. The statement shall not exceed ten (10) pages and shall conform to
this Rule. The statement shall:
(A) Identify the person, in addition to counsel, who will attend the
session as a representative of the party with decision making authority;
(B) Identify any legal or factual issues whose early resolution
might reduce the scope of the dispute or contribute to settlement;
(C) Describe discovery which is contemplated; and,
(D) Include as exhibits copies of all pleadings filed by the party
submitting the written statement.
The statement may include any other information the party believes useful
in preparing the Evaluator and other parties for a productive session. The
statement may identify individuals connected to another person (including a
representative of an insurer) whose presence would be helpful or necessary to
make the session productive. The Evaluator shall determine whether any person
so identified should be requested to attend and may make such request.
(2) Written evaluation statements shall not be filed and shall not be shown
to the Court.
(3) In addition to submitting the written evaluation statement, the parties
shall prepare to respond fully and candidly in a private caucus to questions by the
Evaluator concerning:
(A) The estimated costs to that party of litigating the case through
trial, including legal fees;
(B) Witnesses (both lay witnesses and experts);
(C) Damages, including the method of computation and the proof
to be offered; and
(D) Plans for discovery.
(f) Attendance at the Evaluation Conference.
(1) All parties shall be present, except that when a party is other than an
individual or when a party's interests are being represented by an insurance
company, an authorized representative of such party or insurance company, with
full authority to act and to settle, shall attend. Willful failure of a party to attend
the evaluation conference shall be reported by the Evaluator to the ADR
Administrator for transmittal to the assigned Judge, who may impose appropriate
sanctions.
(2) Each party shall be represented at the session by the attorney expected
to be primarily responsible for handling the trial of the case.
(g) Procedure at Evaluation Conferences.
(1) Each E.N.E. conference shall be informal. The Evaluator shall
conduct the process in order to help the parties to focus the issues and to work
efficiently and expeditiously to make the case ready for trial or settlement.
(2) At the initial conference, and at additional conferences as the
Evaluator deems appropriate, the Evaluator shall:
(A) Permit each party to make a brief oral presentation of its
position, without interruption, through counsel or otherwise;
(B) Help the parties to identify areas of agreement and, if feasible,
enter stipulations;
(C) Determine whether the parties wish to negotiate, with or
without the Evaluator's assistance, before evaluation of the case;
(D) Help the parties identify issues and assess the relative
strengths and weaknesses of the parties' positions;
(E) Help the parties to agree on a plan for exchanging information
and conducting discovery which will enable them to prepare expeditiously
for the resolution of the case by trial, settlement, or dispositive motion;
(F) Help the parties to assess litigation costs realistically;
(G) Determine whether one or more additional conferences would
assist in the settlement or case development process and, if so, schedule
the conference and direct the parties to prepare and submit any additional
written materials needed for the conference;
(H) At the final conference (which may be the initial conference),
give an evaluation of the strengths and weaknesses of each party's case
and of the probable outcome if the case is tried, including, if feasible, the
dollar value of each claim and counterclaim;
(I) Advise the parties, if appropriate, about the availability of
ADR processes that might assist in resolving the dispute; and
(J) Report to the ADR Administrator in writing within ten (10)
days of the close of the E.N.E. conference: the fact that the E.N.E. process
was completed, any agreements reached by the parties, and the Evaluator's
recommendation, if any, as to future ADR processes that might assist in
resolving the dispute.
(3) The Evaluator may, subject to the requirements stated in this Rule:
(A) Determine how to structure the evaluation conference;
(B) Hold separate, private caucuses with any party or counsel but
may not, without the consent of that party or counsel, disclose the contents
of that discussion to any other party or counsel; and
(C) Act as a mediator or otherwise assist in settlement
negotiations either before or after presenting the evaluation called for in
subsection (g)(2)(H) of this Rule.
(h) Confidentiality. The entire E.N.E. process is confidential, and privileged to
the extent provided under Ohio Rev. Code Ch. 2710 and Sixth Circuit law. The parties
and the Evaluator shall not disclose information regarding the process, including
settlement terms, to the Court or to third persons unless all parties otherwise agree.
Parties, counsel, and evaluators may, however, respond to confidential inquiries or
surveys by persons authorized by the Court to evaluate the E.N.E. program. Information
provided in such inquiries or surveys shall remain confidential and shall not be identified
with particular cases.
The E.N.E. process shall be treated as a compromise negotiation for purposes of
the Federal Rules of Evidence and state rules of evidence. The Evaluator is disqualified
as a witness, consultant, attorney, or expert in any pending or future action relating to the
dispute, including actions between persons not parties to the E.N.E. process.
Last revised 8/1/2011. See Historical Notes for full revision history.
