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					    ADR in the COURTS




         Professor John Barkai

  William S. Richardson School of Law
      University of Hawaii at Manoa
2515 Dole Street, Honolulu, Hawaii 96822
          Phone (808) 956-6546
        E-mail: barkai@hawaii.edu
     http://www2.hawaii.edu/~barkai
                     ADR IN HAWAII and THE COURTS
Hawaii has been a leader in the field of ADR.

The Neighborhood Justice Center of Honolulu (NJC), a non-profit community mediation
center, was founded in 1979 and was the first major organization involved in mediation
and other non-binding ADR processes in Hawaii. NJC has been called the "primal mud"
from which ADR evolved in Hawaii. Professor Barkai was in the first group of people
trained to mediate at NJC, which is now called the Mediation Center of the Pacific (MCP).

In 1985 the Program for Conflict Resolution (PCR), an organization involved in research
and ADR training, was founded at the University of Hawaii. Professor Barkai is a
founding member of PCR.

In 1985, Former Chief Justice Herman Lum founded what was then the Program for
Alternative Dispute Resolution. In 1989, the Legislature created CADR, see HRS 613,
and the Program for ADR became the Center for ADR (CADR). CADR designs ADR
systems, assists to resolve disputes, systematically promotes ADR, and oversees the
mediation services provided to the judiciary by various community mediation centers on
all islands.

ADR is used at all levels of the judiciary. Mediation programs range from mediation of
cases in small court to an appellate mediation program for cases in the Intermediate
Court of Appeals and the Supreme Court.

The American Arbitration Association is a national non-profit ADR organization
(www.adr.org) which used to have a regional office in Honolulu. Historically, AAA has
concentrated mainly on arbitration, but has increasingly used mediation. In the early
years of ADR in Hawaii, the AAA was the primary ADR provider for ADR in lawsuits.

Dispute Prevention and Resolution (DPR) is now the major ADR provider in the State of
Hawaii. Keith Hunter, formerly the Regional Director of the American Arbitration
Association's Hawaii office is the CEO and a major provider of ADR services in Hawaii.
Visit the web site at www.dpr4adr.com

There is a series of statutes, court rules, and informal policies that govern ADR and the
court related ADR processes in Hawaii. The most important rule is probably circuit Court
Rule 12, which governs settlement conferences and other ADR requirements.




Professor John Barkai --- University of Hawaii Law School           - ADR in the Courts p. 1 -
                               ADR in Hawaii’s Courts
                                    By Elizabeth Kent and Lou Chang
                                 Vol. 12 Hawaii Bar Journal Nov. 2008, 6

A Quiet Revolution
         The Courts in Hawaii have tested and implemented alternative dispute resolution
(ADR) processes at every level of judicial activity. Motivated and inspired by Chief
Justice Ronald T. Moon and his predecessor, Chief Justice Herman T. F. Lum, to seek
greater efficiencies and user satisfaction in the administration and delivery of judicial
services, ADR has become an important and integral component of judicial process.
ADR has transformed the Courts and the practice of law in a manner unanticipated just
25 years ago.
         Much of the alternative dispute resolution (ADR) infrastructure is designed to
encourage earlier resolutions and control over the outcomes of their legal disputes, and
provide parties and counsel with a productive “time out” from the stress, rigors and
costs of litigation. This productive break also allows parties to explore options not
available in litigation.1 This article discusses various state and federal court rules and
programs that incorporate, encourage, or mandate parties to use or consider alternative
to litigation.

HAWAII STATE COURTS
         In 1985, the Hawaii Supreme Court, with instrumental leadership from Chief
Justice Lum, made Hawaii the first state to create a comprehensive ADR program for
the Judiciary. That program later became the Center for Alternative Dispute Resolution
(Center), established by statute. The Center designs ADR programs, mediates and
facilitates public policy disputes, conducts training for state and county employees, and
promotes the use of ADR processes.
         In 1994, the Hawaii Supreme Court adopted a simple, but profound, aspirational
provision in the Hawaii Rules of Professional Rules of Conduct. Rule 2.1 urges lawyers
to advise clients of ADR options to litigation, as follows:
         Rule 2.1. ADVISOR.
          In representing a client, a lawyer shall exercise independent professional
         judgment and render candid advice. In rendering advice, a lawyer may refer not
         only to law but to other considerations such as moral, economic, social and
         political factors, that may be relevant to the client's situation. In a matter
         involving or expected to involve litigation, a lawyer should advise a client
         of alternative forms of dispute resolution which might reasonably be
         pursued to attempt to resolve the legal dispute or to reach the legal
         objective sought. (emphasis added)

       This provision in the Rules of Professional Conduct has since been buttressed
by legal practice and procedure rules expanding and incorporating ADR processes
1
  For a study of settlement patterns in Hawaii courts please see J. Barkai, E. Kent and
P. Martin, Settling Civil Lawsuits in the Hawaii Circuit Courts, Vol. 10 No. 13, Hawaii Bar
Journal 1 at 9 (2007).
Professor John Barkai --- University of Hawaii Law School                  - ADR in the Courts p. 2 -
throughout the judicial system.

Hawaii Appellate Courts
       In the mid-1990s, the Hawaii Supreme Court faced an unprecedented backlog.
The backlog resulted from several factors, including a turnover of all justices in a one-
year period. Chief Justice Ronald Moon enacted several measures to address the
problem. One such measure was the appellate mediation program, started in 1996.
       If a case is included in the appellate mediation program, participation is
mandatory. There is no charge for this program, as the court’s mediators -- retired
judges and justices, and retired and semi retired attorneys -- are volunteers. If the
parties choose a mediator other than the court appointed mediator, they must pay for
any costs incurred. Parties whose cases are not included in the program may “opt in,”
or request inclusion.
       In the more than 12 years since the program’s inception, 421 cases have been
included.
Of the cases mediated, 51% settled in whole or in part.
       Hawaii Rules of Appellate Procedure and the Hawaii Appellate Conference
Rules Rule 31 and 33, respectively, are the court rules pertinent to the appellate
mediation program.2

TRIAL COURTS
State Circuit Court
       As of 1996, Rule 12(b)(6) of the Rules of the Circuit Courts requires a face-to-
face conference between each party’s lead counsel. The rule requires:
       (6) A statement that each party, or the party's lead counsel, conferred in person
       with the opposing party, or with lead counsel for each opposing party, in a good
       faith effort to limit all disputed issues, including outstanding discovery, and
       considered the feasibility of settlement and alternative dispute resolution
       options. A face-to-face conference is required under these rules and shall not
       be satisfied by a telephone conference or written correspondence. The face-to-
       face conference shall take place in the judicial circuit where the action is pending
       unless otherwise agreed by counsel and/or the parties. (emphasis added)

       The rule presumes that face-to-face discussions will ensure substantive and
complete discussions and exchanges about settlement, and that such thorough
conversations are less likely to take place through brief phone calls.
       Additionally, Rule 12(b)(7) requires a statement identifying any party who objects
to ADR and their reasons for objecting, as well as identification of any process the
parties agreed on. Rule 12.2 of the Rules of the Circuit Courts authorizes the court to
order parties to participate in an ADR process. The rule also permits a party to seek a
court order to participate in an ADR process.

Circuit Court -- Court Annexed Arbitration Program (CAAP)
      Former Chief Justice Lum had a keen interest in implementing programs within

2
  For more information, please visit http://www.state.hi.us/jud/ctrules/hacp.htm, or call
539-4237.
Professor John Barkai --- University of Hawaii Law School             - ADR in the Courts p. 3 -
the Judiciary that offered alternatives to litigation. Thus, in 1985, Chief Justice Lum
created the Judiciary’s Program on Alternative Dispute Resolution and requested the
program’s director and several judges, including Chief Justice Ronald Moon (then
sitting as a trial judge) to explore the feasibility of establishing a mandatory, non-binding
arbitration program in our court system.
        Later that year, the Judiciary implemented an experimental arbitration program,
called the Court Annexed Arbitration Program (“CAAP”), focusing on tort cases with a
value of $50,000 or less. When then-Judge Moon was appointed as the first arbitration
judge, he never imagined that almost 1,350 cases per year, statewide, would be
resolved through the CAAP. The CAAP has changed significantly over its twenty-plus
years of existence, starting out as a non-binding arbitration program for personal injury
cases with a projected jury verdict of $50,000 or less, providing services only on Oahu.
Now the CAAP serves cases in all circuits, the jurisdictional amount is $150,000, and
there is a pilot project for contract cases.
        There have been other changes to the CAAP as well. Perhaps one of the most
significant changes is that the “sanction” for requesting a de novo trial and not
significantly bettering the verdict is now 30%.3 Originally, the disincentive was at 15%.
        The pilot project for contract cases began in 2005. Although parties in contract
cases sometimes sought to opt into the CAAP before the initiation of the pilot project,
now parties in select cases are notified by the CAAP that their cases are eligible for
inclusion in the pilot project. See Hawaii Arbitration Rules, Rule 30. Not many parties
chose to be included when the project first started. As of August 31, 2008, however,
123 were pending in the pilot project, including seven cases that asked to be included.
There are 37 arbitrators for this pilot project (a different panel than for the personal
injury cases).
        CAAP relies on volunteers to serve as arbitrators. Attorneys may serve as
arbitrators, provided that they have been in practice for at least five years. Many CAAP
arbitrators comment that what they learn from serving as an arbitrator helps them as
advocates.4

Family Court
Volunteer Settlement Master Process (VSM) (First Circuit)
        Several years ago, Family Court Judge Mark Browning envisioned a better way
of helping divorcing couples solve their problems. He convened a group of concerned
practitioners and others, and in 2004, the Family Court of the First Judicial Circuit and
the Family Law Section of the Hawaii State Bar Association collaborated to develop the
Volunteer Settlement Master Process. Licensed attorney members of the Family Law
Section serve as the Volunteer Settlement Masters (“VSMs”) and help divorcing
couples settle financial and other issues. The Senior Judge of the Family Court is
responsible for selecting and appointing VSMs. To date, approximately 50 family law

3
  See Hawaii Arbitration Rules, Rule 30.
4
  For more information about the CAAP or to volunteer to be an arbitrator, please call
the CAAP administrators for each circuit: Frances Yamada on Oahu at 534-6000, Colin
Rodrigues on Maui at 244-2855, Lester Oshiro on Hawaii Island at 961-7435, and
Steven Okihara on Kauai at 482-2308. The CAAP Rules are found at
www.state.hi.us/jud/ctrules/har.htm.
Professor John Barkai --- University of Hawaii Law School              - ADR in the Courts p. 4 -
attorneys have been selected to serve as VSMs.
       The Family Court assigns a VSM to divorcing couples scheduled for a
conference to set a trial date. Cases involving restraining orders or domestic violence
allegations do not go through the VSM process.
       To promote efficiency, the couple is required to organize its financial paperwork
before the meeting with the VSM. The VSM meets with the divorcing couple and their
attorneys for about 3 1/2 hours to provide them an opportunity to express their
respective views. The VSM guides the process; the parties create any agreement
reached. There is no cost to the divorcing couple for the VSM services.
       The VSM process is confidential. Subject only to the provisions of the Hawaii
Rules of Professional Conduct and the Hawaii Rules of Evidence, all communication
among and between the master, the parties, and their attorneys is not disclosed to the
Family Court or the other party. After the meeting, the VSM sends a report to the
Family Court stating whether a meeting occurred and is so, which parties attended, and
whether the case settled.
       As of July, 2008, 378 cases had gone through the VSM process, 291 of which
settled. The settlement rate of 77% underscores the effectiveness of this collaborative
project and the contribution made by the members of the Family Law Section of the
Bar.5

Judicial Pre-trial Assistant Program
        The Judicial Pre-trial Assistant Program focuses on abuse and neglect cases
filed in the First Circuit. There are currently two volunteer Judicial Pre-trial Assistants
(“JPAs”) who volunteer their time, Dr. Scott Hashimoto and Phillip Nerney. JPAs
Hashimoto and Nerney are experienced lawyers and mediators, with backgrounds in
psychology and counseling. They use their mediation skills to bring parties and counsel
together to look for solutions and voluntary settlements.

Mediation in Divorce and Paternity Cases
       Although not technically a “program,” each circuit routinely refers contested
divorce and paternity cases to mediation. Rule 53.1, Family Court Rules, allows the
court to refer parties to ADR. That rule states: “The court, in its discretion or upon
motion by a party, may order the parties to participate in an alternative dispute
resolution process subject to conditions imposed by the court.” Often the parties choose
to mediate at the community mediation centers, located on each island.6

5
 Questions or comments about the VSM process should be directed to the Hawaii
State Judiciary's Center for Alternative Dispute Resolution at 539-4ADR(4237). For
more information or to get the forms visit the Judiciary’s website at
www.courts.state.hi.us/page_server/Services/34579D13DCC05A18FF99201593.html
6
 Oahu: The Mediation Center of the Pacific, Inc. (521-6767)
Maui: Mediation Services of Maui (244-5744)
Molokai: Mediation Center of Molokai (553-3844)
Hawaii (Hilo): Kuikahi Mediation Center (935-7844)
Hawaii (Waimea): West Hawaii Mediation Center (885-5525)
Kauai: Kauai Mediation Program, Kauai Economic Opportunity, Inc. (245-4077, x. 237)
Professor John Barkai --- University of Hawaii Law School             - ADR in the Courts p. 5 -
       Under a contract with the Judiciary, these community mediation centers provide
affordable and high quality services to the public. For filed cases, the cost is no more
than $60 per party, per session, which can be reduced or waived for low income clients.
       In 2007, the centers collectively mediated approximately 600 domestic. Often
parties mediate at the centers prior to filing to enable them to file for an uncontested
divorce. Approximately 57% of the domestic cases mediated at The Mediation Center
of the Pacific (Oahu) in the last fiscal year resulted in written agreements.

Probate Court
        There are specific rules that apply to mediation of Probate, Trust, Conservator
and Guardianship of the Property cases.
        Rule 1 of the Mediation Rules adopted by the Probate Court in 1996 provides:
        The probate court may refer probate, trust, conservatorship, and guardianship,
        cases in the State of Hawaii to mediation. Cases may be referred upon the
        petition of a party, by written stipulation of all parties, or upon the court's own
        motion. Participation in the mediation is mandatory in all cases that the court
        refers to mediation.
        When parties are referred to mediation, they may select a mediator or the court
can appoint one. The Rules also address the authority of the mediator, attendance and
participation, confidentiality, immunity and sanctions. 7
        Hawaii’s Probate Court Rules are also unique because of the Kokua Kanawai
option. This option allows the Probate Court to enlist a neutral person to serve as on
officer of the court with authority to confer, consult, and investigate the full range of
pertinent circumstances related to a contested probate, trust, guardianship or
conservator proceeding, and make recommendations to the Court in these sensitive
and difficult disputes.8

District Courts
Small Claims Mediation
       On most trial days in small claims courts state-wide, mediators from the
community mediations centers meet with parties before their cases are heard by a
judge. There is no cost for the mediation and the sessions are relatively short
(approximately 30 minutes).
       Hawaii’s small claims mediation began in the early 1990s. During the last fiscal
year, The Mediation Center of the Pacific mediated close to 300 cases with a
settlement rate of approximately 33%.9

Residential Summary Possession Cases
      As with the mediation of small claims cases, residential landlord-tenant cases
are usually mediated at the courthouse on the day set for trial. There is no cost for the
mediation and the sessions are relatively short (approximately 30 minutes) During the


7
  Such rules may be found at http://www.state.hi.us/jud/ctrules/hpr.htm.
8
  . See Probate Court Rule 113. You may find the rules of the probate court at
http://www.state.hi.us/jud/ctrules/hpr.htm.
9
  For more information, please contact the community mediation centers.
Professor John Barkai --- University of Hawaii Law School             - ADR in the Courts p. 6 -
last fiscal year, The Mediation Center of the Pacific (Oahu) mediated close to 150
cases with a settlement rate of approximately 75%.10

Temporary Restraining Orders
       Approximately 3,000 Temporary Restraining Order (“TRO”) cases are filed in the
courts each year. The community mediation centers mediate some of these cases to
help parties develop solutions. Statewide, the centers mediated approximately 300
TRO cases last year.
Approximately 35 of those were mediated at The Mediation Center of the Pacific, with a
settlement rate of approximately 49%.
       In the First Circuit certain TRO cases are referred to a Volunteer Settlement
Master (VSM) in the District Court. The meetings with the VSM are held at the
courthouse.

Misdemeanors
        Restorative Justice (“RJ”) is a new trend in criminal justice. In 2000, after two
years of meetings throughout Hawaii to discuss Restorative Justice, Chief Justice Moon
signed a resolution endorsing Restorative Justice and the concept of Pono Kaulike. In
RJ, the victim often has a more prominent role than in the “traditional” justice system.
In the Hawaii Judiciary, Pono Kaulike refers to “Equal Rights and Justice for All,” and
refers to an “attempt to deliver services and resolve disputes in a balanced manner that
provides attention to all participants in the justice system including parties, attorneys,
witnesses, jurors, and other community members who are active participants in the
justice system.”11
        In September 2002, the Hawaii Friends of Civic and Law Related Education, a
non-profit organization, collaborated with the district court (First Circuit) to develop a
                   12
pilot RJ program. Judge Leslie Hayashi and Attorney Lorenn Walker started a pilot
project in the district court called Pono Kaulike. In that program parties attend one of
three distinct types of RJ processes: (1) a Restorative Conference in which the
defendant, victim, and supporters of both meet in a group to talk about how the
wrongdoing affected them and how the harm may be repaired; (2) a Restorative
Dialogue in which the defendant and victim meet together to discuss the crime; and (3)
a Restorative Session in which the parties meet separately with a facilitator.13

FEDERAL COURTS
Ninth Circuit Court of Appeals

10
     For more information, please contact the community mediation centers.
11
   CJ Moon, Resolution Concerning Restorative Justice and the Concept of Pono
Kaulike, October 10, 2000,
http://www.courts.state.hi.us/page_server/Drafts/News?Special Projects/Restorative
Justice.
12
   L. Walker and L. Hayashi, Pono Kaulike: A Pilot Restorative Justice Program, Hawaii
Bar Journal, Vol. 8, No. 5, 4, at 9 (May 2004).
13
   For more information about this program please contact Lorenn Walker at
lorenn@lorennwalker.com or 637-2385.
Professor John Barkai --- University of Hawaii Law School            - ADR in the Courts p. 7 -
Mediation Program
        This 20 year old program provided the model for Hawaii’s appellate mediation
program and not surprisingly there are many similarities between the two. Unlike
Hawaii’s program that uses volunteer mediators, the federal court program uses nine
staff mediators who are based in San Francisco and Seattle. The mediators review the
Civil Appeals Docketing Statement filed by appellants and, based on this review,
schedule cases for a telephonic settlement assessment conference. These
conferences are held in approximately 70% of the court’s civil cases.
        At the assessment conference, counsel and the mediator decide together
whether to keep the case in the mediation program, and if so, whether to hold further
telephonic sessions or to hold an in-person mediation. The mediators will come to
Honolulu as needed, with no set schedule. Hawaii cases are assigned to the Ninth
Circuit mediators on a six month rotation with the aspiration of combining a number of
mediations in one trip.14
        Approximately 1,000 cases are mediated each year. The total civil caseload for
the Ninth Circuit is about 4,000.

Federal District Court
        Local Rule 16.2, Scheduling Conference, requires counsel to attend a scheduling
conference and be prepared to discuss, among other things, the appropriateness of the
case for special procedures including ADR. Counsel must also be prepared to talk
about settlement prospects and participation in the court’s mediation program or other
ADR processes.
        Local Rule 16.6 governs pretrial statements. The rule requires counsel to
summarize the status of settlement negotiations and/or participation in any ADR
processes. Counsel must also note whether further participation or negotiations are
                       15
likely to be fruitful.
        The court has extensive mediation rules, found at Local Rule 88.1. 16 Through
that rule, ADR is authorized for all civil cases pending before the Hawaii district courts.
In 2003, the Hawaii U.S. District Court enlisted and trained a panel of mediators. Lead
counsel, clients, representatives, or parties with full settlement authority are required to
attend the mediation conferences. At the conclusion of the mediation, the mediator
files a report addressing the date of completion; whether settlement was reached; if
settlement was reached, the dates for complete documentation. If settlement was not
reached, the report indicates whether further ADR efforts would be fruitful.
        The Bankruptcy Court also has ADR rules.17 As in the district court, there is a
panel of mediators.

14
   If counsel would like a case brought into the mediation program in which a telephonic
settlement assessment conference has not been scheduled, counsel should notify the
mediation program at 415.355.7900, or write to Claudia Bernard, Chief Circuit Mediator,
U.S. Court of Appeals for the Ninth Circuit, P.O. Box 193939, San Francisco, CA.
94119-3939.
15
   See Local Rule 16.6(n).
16
   You may find the local federal rules on-line at www.hid.uscourts.gov/misc/lrfinal6-
2003.pdf.
17
   See Local Rule 9019-2.
Professor John Barkai --- University of Hawaii Law School             - ADR in the Courts p. 8 -
      The same confidentiality rules apply to both, incorporating Rule 408 of the
Federal Rules of Evidence. There are also limitations on the communication parties
and mediators may have with the court. With few exceptions, they may not
communicate the substance of any position, offer, or other matter that came up in the
mediation session without consent of all parties.

LOOKING FORWARD
         The ADR field is ever-changing and new processes and law changes are being
discussed. One possible change would be to adopt the Uniform Mediation Act, which
would provide a privilege for parties, mediators, and others who are involved in
mediation. This would be a significant change from the current structure found in Rule
408 of the Rules of Evidence.
         Another innovation is called “Collaborative Law.” Collaborative Law is currently
used mostly in divorce cases. In Collaborative Law parties and their counsel agree that
they will work collaboratively to settle their case without going to court. If they are not
able to, the attorneys who have previously committed to not participate as adversary or
litigation counsel will withdraw and new litigation counsel will represent the parties in
court. Collaborative Law is popular in some communities on the mainland and the
Uniform Law Commission is drafting possible legislation that would create a privilege for
this process too.
         There are many other innovations that have been used in Hawaii. Here it is
common for judges and mediators to work together to resolve cases. Combinations of
mediation and arbitration have been tried. One of the attractive components of ADR is
that processes can be best tailored to meet the needs of the public.
         The innovations, testing and implementation of ADR processes in all of the
courts of Hawaii have been far-reaching and fundamental. ADR processes, where
appropriately applied, enhance user satisfaction with the legal system and improve the
delivery of prompt justice and dispute resolution. The “culture” of the judicial and legal
community has fundamentally changed, in large part because courts and attorneys
have embraced ADR processes to help solve the community’s legal disputes.




Professor John Barkai --- University of Hawaii Law School             - ADR in the Courts p. 9 -
                        Alternative Dispute Resolution (ADR)
                                   Requirements in
                                Circuit Court Rule 12
    1. SCOPE. All civil cases in the Circuit Court.

    2. DEADLINE FOR PRETRIAL STATEMENT. The Plaintiff must file and serve a
       Pretrial Statement within eight (8) months after the complaint has been filed.
       Rule 12 (b).

    3. CONTENTS. The Pretrial Statement shall include the following:
         o Verify that each party (or lead counsel) has met face-to-face with the
           opposing party (or lead counsel) to discuss ADR options. Rule 12 (b)
           (6).
         o Identify the ADR process to which the parties have agreed, or if any party
           objects to ADR, indicate which party and the reasons for objecting. Rule
           12 (b) (7).

    4. STATUS CONFERENCE. Within 60 days of the initial Pretrial Statement, the
       plaintiff shall schedule a trial setting status conference. Rule 12 (c).

    5. ADR OPTIONS DISCUSSED WITH JUDGE. The Civil Administrative Judge, or
       his or her designee, shall conduct the status conference which will be attended
       by each party (or lead counsel), and at which the Judge shall discuss ADR
       options. Rule 12 (c) (1) (B).

    6. COURT MAY ORDER ADR. The Court, in its discretion or upon motion by a
       Party, may order the parties to participate in an ADR process (except binding
       arbitration) subject to conditions imposed by the Court. Rule 12.2.

    7. COMPLEX CASES. The Rules also establish criteria for designation and
       handling of complex cases. The judge assigned to a complex case shall
       determine deadlines for the parties including a meeting with the Judiciary Center
       for Alternative Dispute Resolution. Rule 12 (k) (3) (i) (aa).




Professor John Barkai --- University of Hawaii Law School          - ADR in the Courts p. 10 -
                       HAWAII CIRCUIT COURT RULE
Rule 12. READY CIVIL CALENDAR.
...
(b) Pretrial Statement. No case shall be placed on the "Ready Calendar" unless a
"Pretrial Statement" has been filed and served in accord with Rule 5 of the Hawai`i
Rules of Civil Procedure. The pretrial statement shall be filed within 8 months after a
complaint has been filed or within any further period of extension granted by the court.
It shall contain the following information:
...
(6) A statement that each party, or the party's lead counsel, conferred in person with the
opposing party, or with lead counsel for each opposing party, in a good faith effort to
limit all disputed issues, including outstanding discovery, and considered the feasibility
of settlement and alternative dispute resolution options. A face-to-face conference is
required under these rules and shall not be satisfied by a telephone conference or
written correspondence. The face-to-face conference shall take place in the judicial
circuit where the action is pending unless otherwise agreed by counsel and/or the
parties; and

(7) A statement identifying any party who objects to alternative dispute resolution and
the reasons for objecting. If the parties have agreed to an alternative dispute resolution
process, a statement identifying the process.

(c) Selection of Trial Date and Consideration of Alternative
Dispute Resolution.

(1) Except in cases which have been designated as complex litigation, within 60 days of
the filing of the initial pretrial statement, the plaintiff in all cases filed in the First Circuit
shall schedule a trial setting status conference that shall be attended by each party or
each party's lead counsel and shall be conducted by the Civil Administrative Judge, or
the Civil Administrative Judge's designee. The Civil Administrative Judge, or designee,
shall:
...
      (B) Discuss alternative dispute resolution options. The court may consider other
      matters which may be conducive to the just, efficient and economical
      determination of the case.

Rule 12.1. CIVIL SETTLEMENT CONFERENCE; SETTLEMENT CONFERENCE
STATEMENT.
      (a) Settlement Conference. A settlement conference may be ordered by the court
at any time before trial. Any party may also file a request for settlement conference at
any time prior to trial. A settlement conference in civil cases shall be subject to the
following guidelines:
      (1) If a party settles or otherwise disposes of any action prior to a scheduled
settlement conference, the party shall immediately notify the judge who scheduled the
conference;

Professor John Barkai --- University of Hawaii Law School                  - ADR in the Courts p. 11 -
      (2) Each party to the action shall attend the conference or be represented by an
attorney or other representative who has authority to settle the case;
      (3) For each party represented by counsel an attorney who is assigned to try the
case shall attend the settlement conference. It is expected that the attorney will have
become familiar with all aspects of the case prior to the conference;
      (4) Each party to the action shall have thoroughly evaluated the case and shall
have discussed and attempted to negotiate a settlement through an exchange of written
bona fide and reasonable offers of settlement prior to the conference;
      (5) The judge conducting the settlement conference may, at the conclusion of said
conference, continue said conference to another time and date, and from time to time
thereafter for continued settlement negotiations if he has reason to believe a settlement
can thereby be effectuated;
      (6) Sanctions. The failure of a party or his attorney to appear at a scheduled
settlement conference, the neglect of a party or his attorney to discuss or attempt to
negotiate a settlement prior to the conference, or the failure of a party to have a person
authorized to settle the case present at the conference shall, unless a good cause for
such failure or neglect is shown, be deemed an undue interference with orderly
procedures. As sanctions, the court may, in its discretion:
      (i) Dismiss the action on its own motion, or on the motion of any party or hold a
party in default, as the case may be;
      (ii) Order a party to pay the opposing party's reasonable expenses and attorneys'
fees;
      (iii) Order a change in the calendar status of the action;
      (iv) Impose any other sanction as may be appropriate.
      (b) Settlement Conference Statement. In all civil cases, including those which
have been designated as Complex Litigation, a settlement conference statement shall
be filed not less than 5 working days prior to the date of the settlement conference. The
settlement conference statement shall be filed with the clerk of court and a file-marked
copy shall be delivered to the office of the judge conducting the settlement conference,
and copies served upon all other parties. The statement shall set forth, wherever
applicable, the following information:
      (1) For the plaintiff:
      (i) The name, age, marital status and occupation of all non-corporate plaintiffs;
      (ii) The relief claimed by each plaintiff;
      (iii) A factual summary of the case;
      (iv) Plaintiff's theories of liability against each defendant;
      (v) The name, address, field of expertise and summary of substance of testimony
of each expert witness who supports plaintiff's theories of liability;
      (vi) The name, address and summary of substance of testimony of all other
witnesses who support plaintiff's theories of liability;
      (vii) A statement of plaintiff's position on general damages, including a statement
of all injuries and damages claimed by plaintiff, together with the names of plaintiff's
expert witnesses, including doctors, and copies of their reports;
      (viii) Plaintiff's claim of special damages including an itemized statement of all
special damages claimed by plaintiff;
      (ix) The name, address, field of expertise and summary of substance of testimony
of each expert witness who supports the plaintiff's claim of special damages;
Professor John Barkai --- University of Hawaii Law School           - ADR in the Courts p. 12 -
     (x) The name, address and summary of substance of testimony of all other
witnesses who support plaintiff's position on damages; and
     (xi) A statement of the status of settlement negotiations.
     (2) For the defendants:
     (i) The age, marital status, occupation and corporate or other legal status of each
defendant;
     (ii) The name of applicable insurance carriers and the stated policy limits;
     (iii) A factual summary of the case;
     (iv) The defense to each of plaintiff's theories of liability;
     (v) The name, address, field of expertise and summary of substance of testimony
of each expert witness who supports the defenses to plaintiff's theories of liability;
     (vi) The name, address and summary of substance of testimony of all other
witnesses who support the defenses to plaintiff's theories of liability;
     (vii) A statement of the defense position on general damages, including a
statement of all injuries and damages disputed by defendant, together with the names
of defendant's expert witnesses, including doctors, and copies of their reports;
     (viii) The defendant's position on special damages including a statement of which
special damages are disputed;
     (ix) The name, address, field of expertise and summary of substance of testimony
of each expert witness who supports the defense position on special damages;
     (x) The name, address and summary of substance of testimony of other witnesses
who support the defense position on damages; and
     (xi) A statement of the status of settlement negotiations.
     (c) Confidential Settlement Conference Letter. At least five        (5) working days
before the settlement conference, each party shall deliver directly to the settlement conference judge a
confidential settlement conference letter, which shall not be filed or served upon the other parties. The
confidential settlement conference letter shall not be made a part of the record and confidential
information contained in the letter shall not be disclosed to the other parties without express authority from
the party submitting the letter. The court will destroy the confidential settlement conference letter no later
than entry of final judgment in the case.
       The confidential settlement conference letter shall include a forthright evaluation of the parties'
likelihood of prevailing on the claims and defenses, a description of the major issues in dispute, including
damages, counsel's good faith evaluation of the case, and other information requested by the court.

Rule 12.2. ALTERNATIVE DISPUTE RESOLUTION.
The court, in its discretion or upon motion by a party, may order the parties to
participate in an alternative dispute resolution process subject to conditions imposed by
the court. (Added September 11, 1996, effective January 1, 1997.)




Professor John Barkai --- University of Hawaii Law School                          - ADR in the Courts p. 13 -
               THE ABC'S OF ADR: A DISPUTE RESOLUTION GLOSSARY

                            13 Alternatives to High Cost Litigation 147
                                         November 1995

Center for Public Resources Institute for Dispute Resolution

      Experts know that ADR encompasses a wide range of practices for managing and
quickly resolving disputes at modest cost and with minimal adverse impact on
commercial relationships. These processes, marked by confidentiality when desired,
significantly broaden dispute resolution options beyond litigation or traditional
unassisted negotiation.

      Some ADR procedures, such as binding arbitration and private judging, are similar
to expedited litigation in that they involve a third-party decision- maker with authority to
impose a resolution if the parties so desire. Other procedures, such as mediation and
the minitrial, are collaborative: a neutral third party helps a group of individuals or
entities with divergent views to reach a goal or complete a task to their mutual
satisfaction.

     Arbitration, mediation and the minitrial tend to be the mechanisms most often used
and, for many people, are synonymous with the term, "ADR." But to respond to specific
needs, parties often craft hybrid procedures that combine elements of one or more
dispute resolution methods.

    The following glossary is designed to help parties communicate about this rapidly
changing field. Definitions are not standardized, but flexible and creative like ADR itself.
And with all aspects of ADR, it is most important not that the parties use exactly the
same terms, but that they understand each other.

     We have divided the glossary into private and court-related ADR processes. Most
of these working definitions are derived from prior publications of the CPR Institute for
Dispute Resolution, a number of which address particular ADR processes in depth....

PRIVATE ADR PROCESSES

     Arbitration. The most traditional form of private dispute resolution. It can be
"administered" (managed) by a variety of private organizations, or "non-administered"
and managed solely by the parties. It can be entered into by agreement at the time of
the dispute, or prescribed in pre-dispute clauses contained in the parties' underlying
business agreement. Arbitration can take any of the following forms:

      Binding Arbitration. A private adversarial process in which the disputing parties
choose a neutral person or a panel of three neutrals to hear their dispute and to render
a final and binding decision or award. The process is less formal than litigation; the
parties can craft their own procedures and determine if any formal rules of evidence will
apply. Unless there has been fraud or some other defect in the arbitration procedure,
Professor John Barkai --- University of Hawaii Law School                 - ADR in the Courts p. 14 -
binding arbitration awards typically are enforceable by courts and not subject to
appellate review.

     Non-binding Arbitration. This process works the same way as binding arbitration
except that the neutral's decision is advisory only. The parties may agree in advance to
use the advisory decision as a tool in resolving their dispute through negotiation or
other means.

     "Baseball" or "Final-Offer" Arbitration. In this process, used increasingly in
commercial disputes, each party submits a proposed monetary award to the arbitrator.
At the conclusion of the hearing, the arbitrator chooses one award without modification.
This approach imposes limits on the arbitrator's discretion and gives each party an
incentive to offer a reasonable proposal, in the hope that it will be accepted by the
decision-maker. A related variation, referred to as "night baseball" arbitration, requires
the arbitrator to make a decision without the benefit of the parties' proposals and then
to make the award to the party whose proposal is closest to that of the arbitrator.

     "Bounded" or "High-Low" Arbitration. The parties agree privately without informing
the arbitrator that the arbitrator's final award will be adjusted to a bounded range.
Example: P wants $200,000. D is willing to pay $70,000. Their high-low agreement
would provide that if the award is below $70,000, D will pay at least $70,000; if the
award exceeds $200,000, the payment will be reduced to $200,000. If the award is
within the range, the parties are bound by the figure in the award.

     Incentive Arbitration. In non-binding arbitration, the parties agree to a penalty if
one of them rejects the arbitrator's decision, resorts to litigation, and fails to improve his
position by some specified percentage or formula. Penalties may include payment of
attorneys' fees incurred in the litigation.

      Confidential Listener. The parties submit their confidential settlement positions to a
third-party neutral, who without relaying one side's confidential offer to the other,
informs them whether their positions are within a negotiable range. The parties may
agree that if the proposed settlement figures overlap, with the plaintiff citing a lower
figure, they will settle at a level that splits the difference. If the proposed figures are
within a specified range of each other (for example 10 percent), the parties may direct
the neutral to so inform them and help them negotiate to narrow the gap. And if the
submitted numbers are not within the set range, the parties might repeat the process.

     Fact-finding. A process by which the facts relevant to a controversy are
determined. Fact-finding is a component of other ADR procedures, and may take a
number of forms.

     In neutral fact-finding, the parties appoint a neutral third party to perform the
function, and typically determine in advance whether the results of the fact-finding will
be conclusive or advisory only.

      With expert fact-finding, the parties privately employ neutrals to render expert
Professor John Barkai --- University of Hawaii Law School              - ADR in the Courts p. 15 -
opinions that are conclusive or non-binding on technical, scientific or legal questions. In
the latter, a former judge is often employed.

      Federal Rules of Evidence 706 gives courts the option of appointing neutral expert
fact-finders. And while the procedure was rarely used in the past, courts increasingly
find it an effective approach in cases that require special technical expertise, such as
disputes over high-technology questions. The neutral expert can be called as a witness
subject to cross-examination.

    In joint fact-finding, the parties designate representatives to work together to
develop responses to factual questions.

     Mediation. A voluntary and informal process in which the disputing parties select a
neutral third-party to assist them in reaching a negotiated settlement. Parties can
employ mediation as a result of a contract provision, by private agreement made when
disputes arise, or as part of a court-annexed program that diverts cases to mediation.

     Unlike a judge or arbitrator, a mediator has no power to impose a solution on the
parties. Rather, mediators assist parties in shaping solutions to meet their interests and
objectives. The mediator's role and the mediation process can take various forms,
depending on the nature of the dispute and the approach of the mediator. The mediator
can assist parties to communicate effectively; can identify and narrow issues; crystallize
each side's underlying interests and concerns; carry messages between the parties;
explore bases for agreement and the consequences of not settling; and develop a
cooperative, problem- solving approach.

      By learning the confidential concerns and positions of all parties, the mediator
often can identify options beyond their perceptions. The process is sometimes referred
to as "facilitation" to structure participation in the mediation process, or "conciliation" in
the international arena.
      The mediator's role can take various forms. Some mediators, who favor a
"facilitative" style, encourage parties to generate their own settlement options, and will
not suggest settlement terms. At the other end of the spectrum are "evaluative"
mediators, who will propose settlement options and try to persuade parties to make
concessions.

     To guide negotiations in major commercial disputes, parties sometimes ask the
mediator to assume an evaluative role. The mediator might assess the merits of claims
or defenses, liability or damages, or predict the likely outcome of the case in court.
Generally, mediators need substantive law background or expertise to make such
assessments.

      Med-Arb. A short-hand reference to the procedure mediation-arbitration. In
med-arb, the parties agree to mediate with the understanding that any issues not
settled through the mediation will be resolved by arbitration using the same individual to
act both as mediator and arbitrator. However, that choice may have a chilling effect on
full participation in the mediation portion. A party may not believe that the arbitrator will
Professor John Barkai --- University of Hawaii Law School               - ADR in the Courts p. 16 -
be able to discount unfavorable information learned in mediation when making the
arbitration decision.

     Co-Med-Arb addresses the problem by having two different people perform the
roles of mediator and arbitrator. Jointly, they preside over an information exchange
between the parties, after which the mediator works with the parties in the absence of
the arbitrator. If mediation fails to achieve a settlement, the case (or any unresolved
issues) can be submitted to the arbitrator for a binding decision.

     Minitrial. A structured process with two distinct components. Parties engage in an
information exchange that provides an opportunity to hear the strengths and
weaknesses of one's own case as well as the cases of the other parties involved,
before negotiating the matter.

     In the minitrial, an attorney for each party presents an abbreviated version of that
side's case. The case is heard not by a judge, but by high-level business
representatives from both sides with full settlement authority. It may be presided over
by these representatives with or without a neutral advisor, who can regulate the
information exchange. Following the presentations, the parties' representatives meet,
with or without the neutral, to negotiate a settlement. Frequently, the neutral will serve
as a mediator during the negotiation phase or be asked to offer an advisory opinion on
the potential court outcome, to guide negotiators.

     Multi-Party Coordinated Defense. A coordinated joint defense strategy in which a
neutral facilitator helps multiple defendants negotiate, organize, and manage
cooperative joint-party arrangements that are ancillary to the main dispute. In the
process, they streamline the steps toward resolution. Coordinated defense efforts
include agreements to: limit infighting among defendants; use joint counsel and experts;
assign and share discovery and research tasks; coordinate and share the results of
procedural maneuvers; and apportion liability payments, should they be imposed.

      Multi-Step ADR. Parties may agree, either when a specific dispute arises, or earlier
in a contract clause between business venturers, to engage in a progressive series of
dispute resolution procedures. One step typically is some form of negotiation,
preferably face-to-face between the parties. If unsuccessful, a second tier of negotiation
between higher levels of executives may resolve the matter. The next step may be
mediation or another facilitated settlement effort. If no resolution has been reached at
any of the earlier stages, the agreement can provide for a binding resolution--through
arbitration, private adjudication or litigation.

     One form of multi-step ADR is the wise man procedure, typically used when
problems arise in long-term partnerships such as those in the oil and gas industry.
Sometimes called "progressive negotiation" or "mutual escalation," this procedure
refers matters first to a partnership committee which oversees the day-to-day
operations of the project. If the problem cannot be resolved at that level, the wise-man
option--the next ADR step--is employed.

Professor John Barkai --- University of Hawaii Law School            - ADR in the Courts p. 17 -
      The wise men (or women) are respected senior executives of each company who
are uninvolved in the project. These officials are given a fairly short time frame
(sometimes just 30 days) to investigate the dispute. If that fails, the matter goes to a
third step, usually binding arbitration. While pioneered in the oil industry, the wise man
approach could also be useful in the high- technology field and other areas involving
close and continuing business relationships.

       Negotiated Rule-Making. Also known as regulatory negotiation, this ADR method
is an alternative to the traditional approach of U.S. government agencies to issue
regulations after a lengthy notice and comment period. In reg-neg, as it is called,
agency officials and affected private parties meet under the guidance of a neutral
facilitator to engage in joint negotiation and drafting of the rule. The public is then asked
to comment on the resulting, proposed rule. By encouraging participation by interested
stakeholders, the process makes use of private parties' perspectives and expertise, and
can help avoid subsequent litigation over the resulting rule.

    Ombudsperson. An organizational dispute resolution tool. The ombudsperson is
appointed by an institution to investigate complaints within the institution and either
prevent disputes or facilitate their resolution. The ombudsperson may use various ADR
mechanisms such as fact-finding or mediation in the process of resolving disputes
brought to his or her attention.

      Partnering. Typically used as a dispute-prevention method for large construction
projects, this method is capable of being transposed in other settings, particularly in
joint ventures. Before the work starts, parties to the project generally assemble for a
several-day retreat away from their organizations. With the help of a third-party neutral,
they get to know each other; discuss some of the likely rough spots in the project; and
even settle on a process to resolve misunderstandings and disputes as the project
progresses.

      Predispute ADR Contract Clause. A clause included in the parties' business
agreement to specify a method for resolving disputes that may arise under that
agreement. It may refer to one or more ADR techniques, even naming the third party
that will serve as an arbitrator or mediator in the case. Predispute agreements requiring
arbitration of consumer disputes, or entered into as a condition of employment, have
generated substantial backlash lately from people who argue that these clauses are
adhesion contracts.

      Two-Track Approach. Involves use of ADR processes or traditional settlement
negotiations in conjunction with litigation. Representatives of the disputing parties who
are not involved in the litigation are used to conduct the settlement negotiations or ADR
procedure. The negotiation or ADR efforts may proceed concurrently with litigation or
during an agreed-upon cessation of litigation. This approach is particularly useful in
cases when: it may not be feasible to abandon litigation while the parties explore
settlement possibilities; or as a practical matter, the specter of litigation must be present
in order for the opposing party to consider or agree to an alternative mechanism. It also
is useful when the litigation has become acrimonious or when a suggestion of
Professor John Barkai --- University of Hawaii Law School             - ADR in the Courts p. 18 -
settlement would be construed as a sign of weakness.



COURT ADR PROCESSES

       Court-Annexed Mediation. In mediation, a neutral third party--the mediator--
facilitates negotiations among the parties to help them settle. The mediation session is
confidential and informal. Disputants clarify their understanding of underlying interests
and concerns, probe the strengths and weaknesses of legal positions, explore the
consequences of not settling, and generate settlement options. The mediator, who may
meet jointly or separately with the parties, serves solely as a facilitator and does not
issue a decision or make findings of fact. A hallmark of mediation is its capacity to help
parties expand traditional settlement discussions and broaden resolution options, often
by going beyond the legal issues in controversy.

     Mediation works much the same in courts and in private settings, with a few
important differences. A court mediation program may be based in the court, or may
involve referral by the court to outside ADR programs run by bar associations, nonprofit
groups, other local courts, or private ADR providers. Some courts require litigants to
use mediation in what are known as mandatory mediation programs. The purpose of
the mediation session is unchanged whether litigants enter the program voluntarily or
by court mandate. The court mediator may be a lawyer trained in mediation and
compensated by the parties, or serve as a volunteer. Judges, magistrate judges, or
court ADR professionals also serve as mediators in some court programs.

     Mediation is the primary ADR process in federal, state and local courts, second
only to the traditional judicial settlement conference. Mediation has proved useful in so
many kinds of disputes that some experts favor its use in all civil cases, to improve case
management and settlement.

     In the federal system, more than 40 of the 94 district courts and almost all the
circuit courts have mediation programs using judges or lawyers as mediators. Mediation
programs are also underway in more than one-third of the state courts and in many
bankruptcy courts.

     Early Neutral Evaluation. Like mediation, ENE is applicable to many types of civil
cases, including complex disputes. In ENE, a neutral evaluator--a private attorney
expert in the substance of the dispute--holds a several-hour confidential session with
parties and counsel early in the litigation to hear both sides of the case. Afterwards, the
evaluator identifies strengths and weaknesses of the parties' positions, flags areas of
agreement and disputes, and issues a non-binding assessment of the merits of the
case.

     Developed during the mid-1980's in the San Francisco federal court, ENE is now
used in 18 federal district courts and several state courts. Usually, attorneys trained by
the court serve as evaluators; in some courts, including the Southern District of
Professor John Barkai --- University of Hawaii Law School            - ADR in the Courts p. 19 -
California, magistrate judges conduct ENE sessions.

      Originally designed to make both case management and settlement more efficient,
ENE has evolved into a pure settlement device in some courts. Used this way, ENE
resembles evaluative mediation, in which the mediator uses case evaluation as a
settlement tool.

      Court-Annexed Arbitration. An adjudicatory dispute-resolution process in which
one or more arbitrators issue a non-binding judgment on the merits, after an expedited,
adversarial hearing. The arbitrator's decision addresses only the disputed legal issues
and applies legal standards. Either party may reject the non-binding ruling and proceed
to trial.

      Court annexed arbitration is used mainly in small- and moderate-sized tort and
contract cases, when litigation costs are often disproportionate to the amounts at stake.
Twenty-six federal district courts have established mandatory or voluntary arbitration
programs and arbitration is common in many state courts. In some courts, about a third
of all civil cases are referred to arbitration. Still, new court-annexed arbitration programs
are rare these days. Once the premier court ADR process, it has lost popularity in
recent years. Most court ADR development focuses on mediation.

       Summary Jury Trial. The summary jury trial is a non-binding ADR process used to
promote settlement in trial-ready cases headed for protracted jury trials. Usually a judge
or magistrate judge presides over the SJT; occasionally, a neutral attorney conducts the
process. Part or all of a complex dispute may be submitted to a summary jury trial. After
an abbreviated hearing in which counsel present evidence in summary form, the jury
renders an advisory verdict. Non-binding, it becomes the basis for subsequent
settlement negotiations. If the parties do not reach a settlement, the case proceeds to
trial.

      Because they are costly, SJTs are used relatively rarely. Typically, the SJT is
reserved for large cases when other settlement efforts have failed and litigants differ
significantly about jury outcome.

     Appellate ADR. Mediation programs have become increasingly popular among the
nation's appeals courts. Each of the 12 federal circuits either has a settlement office or
plans to open one shortly. One the state level, at least 50 appeals courts have used
mediation at some time, and approximately 25 courts currently have active programs.

     Unlike trial-level ADR, which ranges from mandatory arbitration to multidoor
courthouses, appellate programs tend to look very similar. In most programs, staff
attorneys or outside lawyers conduct mandatory, pre-argument conferences in those
cases that seem most likely to settle. Some appellate programs are geared exclusively
toward settlement, while other programs also address case management and
procedural issues.

      Judge-Hosted Settlement Conferences. The most common form of ADR used in
Professor John Barkai --- University of Hawaii Law School             - ADR in the Courts p. 20 -
federal and state courts is the settlement conference presided over by a judge or
magistrate judge. Almost 94 of the federal district courts use judicial settlement
conferences routinely, and nearly one-third of the courts assign this role almost
exclusively to magistrate judges.

       The classic role of the settlement judge is to articulate judgments about the merits
of the case and to facilitate the trading of settlement offers. Some settlement judges
and magistrate judges also use mediation techniques in the settlement conference to
improve communication among the parties, probe barriers to settlement, and assist in
formulating resolutions. In some courts, a specific judge or magistrate judge is
designated as settlement judge. In others, the assigned judge (or another judicial officer
who will not hear the case) hosts settlement conferences at various points during the
litigation, often directly before trial.

     Court Minitrial. The minitrial is a flexible, non-binding settlement process primarily
used out of court. During the past decade, some federal district judges have used their
own version of the minitrial. Like the summary jury trial, the court minitrial is a relatively
elaborate ADR method generally reserved for large disputes.

      In a typical court minitrial, each side presents a shortened form of its best case to
settlement-authorized client representatives--usually senior executives. The hearing is
informal, with no witnesses and a relaxation of the rules of evidence and procedure. A
judge, magistrate judge or non-judicial neutral presides over the one- or two-day
hearing. Following the hearing, the client representatives meet, with or without the
neutral adviser, to negotiate a settlement. At the parties' request, the neutral advisor
may assist the settlement discussions by acting as a facilitator or by issuing an advisory
opinion. If the talks fail, the parties proceed to trial.

       Case Valuation ("Michigan Mediation"). This hybrid ADR process provides litigants
in trial-ready cases with a written, non-binding assessment of the case's judgment
value, delivered by a panel of three attorneys with subject- matter expertise after a very
short hearing. If the panel's valuation is accepted by all parties, the case is settled for
that amount. If any party rejects the panel's assessment, the case proceeds to trial.

    Used only in the federal and state courts in Michigan, the arbitration-like valuation
process is known widely by the misnomer "Michigan Mediation." Established in the
Michigan state courts almost 20 years ago, today the process is used mainly for
money-only contract, personal injury and civil rights cases.

      Multidoor Courthouse or Multi-Option ADR. This term describes courts that offer
an array of dispute resolution options or screen cases and then channel them to
particular ADR methods. Some multidoor courthouses refer all cases of certain types to
particular ADR programs, while others offer litigants a menu of options in each case.
Multidoor courthouses have been established in state courts in New Jersey, Texas,
Massachusetts, and the District of Columbia. On the federal level, courts in the Western
District of Missouri, the Northern District of California, the District of Rhode Island, and
others now have multi-option ADR.
Professor John Barkai --- University of Hawaii Law School               - ADR in the Courts p. 21 -
      Settlement Week. In a typical settlement week, a court suspends normal trial
activity and, aided by bar groups and volunteer lawyers, devotes itself to the mediation
of long-pending civil cases. Mediation is the mainstay ADR method in a typical
settlement week. Volunteer lawyers conduct mediations in courtrooms, conference
rooms and other areas of the courthouse. Sessions may last an hour or two, with
additional sessions held as needed. Unresolved cases return to the court's docket.

      Settlement weeks are used regularly only in two federal district courts. The
process is used more widely in state courts and a few federal courts send cases to
settlement weeks sponsored by local state courts.

     Private Judging. Private judging is a general term used to describe a private or
court-related process in which disputing parties empower a private individual to hear
and decide their case. The procedure may be exclusively a matter of contract between
the parties or may be undertaken in connection with an authorizing statute. When
authorized by statute, the process is sometimes referred to by the colloquial term,
"Rent-a-Judge."




Professor John Barkai --- University of Hawaii Law School          - ADR in the Courts p. 22 -
                      HAWAII'S
         COURT-ANNEXED ARBITRATION PROGRAM
              FINAL EVALUATION REPORT
                                            March 1992
                                       Professor John Barkai
                                    Professor Gene Kassebaum

                                   EXECUTIVE SUMMARY

Background

      During the past few years, virtually all state and federal jurisdictions have
considered various alternative dispute resolution (ADR) methods to treat the two major
problems with their court systems: high cost and excessive delay. Court-annexed
arbitration is one of the most popular innovations. Arbitration programs are currently
operating in at least twenty states and ten United States Federal District Courts.

Program Description and Goals

      Hawaii's Court Annexed Arbitration Program (CAAP) is a mandatory, non-binding
arbitration procedure for tort cases with a probable jury award of $150,000 or less. The
program has the highest dollar jurisdiction of any mandatory state arbitration program in
the country. Approximately 1,500 such Hawaii tort cases are eligible for CAAP each
year.

      The major goals of the Hawaii arbitration program are to:
      1) reduce costs for private litigants by managing and reducing pretrial discovery;
      2) move cases through the courts at a faster pace;
      3) provide litigants with a fair, just, and satisfactory "day-in-court;"
      4) encourage early settlements; and
      5) prevent backlogs and delays.

     CAAP seeks to achieve these goals by eliminating unnecessary pretrial discovery
and setting time deadlines for arbitration. The arbitrators are volunteer lawyers with five
or more years of practice experience. The program encourages the early settlement of
cases and yet offers litigants a low-cost "day-in-court" in the form of an arbitration
hearing. Litigants who are not satisfied with the arbitration award may "appeal" the
award and request a trial de novo. The case is then returned to the regular litigation
track and moves toward trial.


Professor John Barkai --- University of Hawaii Law School            - ADR in the Courts p. 23 -
                                                  Fitting the Forum to the Fuss:
                                   A User-Friendly Guide to Selecting an ADR Procedure,
                    Frank E.A. Sander and Stephen B. Goldberg, 10 Negotiation Journal 49 (January 1994)

                                                                          Procedures
                                                            Non-binding                                          Binding
              Objectives           Mediation        Mini-trial    Summary          Early                 Arbitration,      Court
                                                                  Jury Trial      Neutral                 Private
                                                                                 Evaluation               Judging
           Minimize Costs
                 Speed
                Privacy
          Maintain/Improve
           Relationship
              Vindication
           Neutral Opinion
               Precedent
              Maximizing/
              Minimizing
               Recovery

0 = unlikely to satisfy objective
1 = satisfies objective somewhat
2 = satisfies objective substantially
3 = satisfies objective very substantially


Professor John Barkai --- University of Hawaii Law School                  - ADR in the Courts p. 24 -

				
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