RULE CV-88. ALTERNATIVE DISPUTE RESOLUTION

(a) ADR Report. Upon order of the Court entered early in the case, the parties shall submit a report addressing the status of settlement negotiations, disclosing the identity of the person responsible for settlement negotiations for each party, and evaluating whether alternative dispute resolution is appropriate in the case. Counsel shall certify in the report that their clients have been informed of the ADR procedures available in this district. In the event the parties conclude that ADR is appropriate and agree upon a method of ADR and a neutral, they should identify both the method of ADR and the neutral they have selected, the method by which the neutral was selected, and how the neutral will be compensated. If the parties agree upon an ADR method and neutral, the Court will defer to the parties’ agreement unless the Court finds that another ADR method or neutral is better suited to the case or the parties.

(b) Referral to ADR. The Court on its own motion or upon the motion of either party may order the parties to participate in a nonbinding alternative dispute resolution proceeding, including nonbinding arbitration, early neutral evaluation, mediation, minitrial, or moderated settlement conference. The order may further direct the parties to bear all expenses relating to alternative dispute resolution proceedings in such amounts and proportions as the Court finds appropriate, but in no event should apportioning of costs constitute a penalty for failing to arrive at a settlement. The alternative dispute resolution proceeding shall begin at a date and time selected by the neutral or neutrals, but in no event later than 45 days after the entry of the order compelling participation in the proceeding.

(c) Attendance. Party representatives with authority to negotiate a settlement and all other persons necessary to negotiate a settlement must attend the ADR proceeding.

(d) Certification of Neutrals. The Court will appoint three members to a standing panel in each division on ADR neutrals and designate one member as chairperson. The panel will review applications from providers and annually prepare a roster of those qualified under the criteria contained in this rule. This roster shall be maintained separately from the list of arbitrators maintained in the Office of the Clerk pursuant to Local Rule CV-87.

(1) To be eligible for listing on the roster of neutrals provided for by this rule, neutrals must meet the following minimum qualifications:

a. the person must be a member of the bar of the United States District Court for the Western District of Texas; and

b. the person must have been a member of bar of the highest court of any state or the District of Columbia for at least five years; and

c. the person must have completed at least forty hours training in dispute resolution techniques in an alternative dispute resolution course approved by the State Bar of Texas Minimum Continuing Legal Education Department or has been a judge of a court of record in the State of Texas.

A neutral denied listing may request a review of that decision.

(e) Selection of Neutral. Upon entry of an order compelling participation in alternative dispute resolution, the Clerk shall forthwith furnish to each party a list of neutrals. If the compelled procedure is nonbinding arbitration or moderated settlement conference, the list shall include five neutrals whose names have been selected from the roster of neutrals maintained in the Clerk’s Office. If the compelled proceeding is other than nonbinding arbitration or moderated settlement conference the list shall include three neutrals selected from this same roster. The parties shall then confer with each side entitled to strike one name from the list. The parties may by agreement reject the list furnished by the Clerk and instead select a neutral or neutrals from the roster. Failure of counsel to timely notify the Clerk of their strikes or selection shall result in the selection of the neutral or neutrals by the Clerk.

The Clerk shall promptly notify the neutral or neutrals selected. If any person selected in unable or unwilling to serve the Clerk shall submit an additional list of names to the parties until a neutral or complete panel of neutrals is selected. When a neutral or full panel of neutrals have been selected and have agreed to serve, the Clerk shall promptly notify the neutral or neutrals and the parties of the selection.

No person shall serve as a neutral if any of the circumstances specified in 28 U.S.C § 455 of the Judicial Code of Conduct exist, or if the neutral believes in good faith that such circumstances exist. Any person whose name appears on the roster maintained in the Clerk’s Office may ask at any time to have his or her name removed, or, if selected to serve in any case, decline to serve but remain on the roster.

Upon its own motion or upon motion and showing of good cause by any party, the Court may order appointment of a neutral or neutrals from outside the roster of qualified neutrals maintained by the Clerk’s Office.

(f) Relief from Referral. Any party may obtain relief from an order compelling participation in an alternative dispute resolution proceeding upon a showing of good cause. Good cause may include a showing that the expenses relating to alternative dispute resolution would cause undue hardship to the party seeking relief from the order. In that event, the Court may in its discretion appoint a neutral or neutrals to provide ADR services without fee and at no cost to the party or parties.

(g) Confidentiality. Except as otherwise provided herein, a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, whether before or after the institution of formal judicial proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding.

1. Any record made at an alternative dispute resolution procedure is confidential, and the participants or the third party facilitating the procedure may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring the disclosure of confidential information or data relating to or arising out of the matter in dispute.
2. An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure.
3. If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the Court having jurisdiction of the proceedings to determine, in camera, whether the facts, circumstances, and context of the communications of materials sought to be disclosed warrant a protective order of the Court or whether the communications or materials are subject to disclosure.

(h) Summary Jury Trial. In cases where alternative dispute resolution procedures have proved unsuccessful and a complex and lengthy trial is anticipated, the Court may conduct a summary jury trial provided that the Court finds that a summary jury trial may produce settlement of all or a significant part of the issues and thereby effect a saving in time, effort and expense for all concerned. The Court should develop procedures for such summary jury trial with the advice of counsel.

(i) Report. At the conclusion of each ADR proceeding, the neutral or panel of neutrals shall submit to the Court a notice of outcome, including the style and number of the case and whether the case has settled.

(j) Sanctions. The sanctions available under Federal Rule of Civil Procedure 16(f) shall apply to any violation of this rule.

[Effective January 1, 1994.]