Exercise Strategies For Settlement Conferences Ahead of U.S. Magistrate Judges – Litigation, Mediation & Arbitration

U.S. Magistrate Judges have been utilized far more fre­quently&#13
in latest a long time for option dispute reso­lution in the&#13
federal court procedure. This short article dis­cusses the background of&#13
the referral method, how and why cases are assigned to U.S.&#13
Justice of the peace Judges in the Houston and Galveston Divisions of the&#13
Southern District of Texas for settlement conferences, and what to&#13
hope if you are ordered to take part in a settlement&#13

In 1990, prompted by substantial delays and charges&#13
as­sociated with civil discovery, Congress enacted the Civil&#13
Justice Reform Act, which makes recommendations to ad­dress&#13
those problems by utilizing scenario management ideas and&#13
encouraging early judicial involvement in the discovery&#13
system.1 Among the suggestions was the use of&#13
court referrals of appropriate instances to&#13
media­tion.2 In the a long time adhering to, federal&#13
judges more and more imposed mediation deadlines in their scheduling&#13
orders or, if the scheduling orders ended up silent on option&#13
dispute resolution, entertained motions powerful the get-togethers to&#13
mediate. It was only a issue of time right before U.S. Magis­trate&#13
Judges were being considered as case administration assets, primarily in&#13
situations the U.S. District Decide thought should be mediated but where by&#13
a occasion, generally a professional se litigant, could not afford to pay for to&#13
use a mediator. Referrals to justice of the peace judges have expanded&#13
further than situations with indigent parties and now encompass the complete assortment&#13
of federal conditions. How­ever, restrictions implement.

U.S. Justice of the peace Judges, as scenario administration sources, are not&#13
cost-free mediators for the inquiring. An legal professional are not able to only call a&#13
justice of the peace judge’s scenario manager to agenda a settlement&#13
meeting simply because by statute, a U.S. District Decide ought to refer the&#13
situation to the justice of the peace choose for a set­tlement&#13
conference.3 Magistrate judges in the Houston and&#13
Galveston Divisions are paired with two or 3 district judges&#13
who delegate issues to the assigned magistrate choose. Every&#13
district judge has his or her individual philosophy about the use of the&#13
assigned justice of the peace judge in the pre­trial administration of a&#13
scenario. Some judges refer whole instances to the magistrate choose for&#13
entire pretrial management, in­cluding dispositive motions other&#13
judges only refer dis­covery issues or specific&#13
motions.4 This variation in philosophies extends&#13
to referrals of scenarios to magistrate judges for settlement&#13

For example, some district judges are reluctant to use court docket&#13
resources-the magistrate judge’s time-to give no cost&#13
mediations to represented functions. Those people judges rare­ly, if&#13
ever, refer a scenario to a justice of the peace judge for a settle­ment&#13
meeting, even if asked for by the events. Other district judges&#13
may use facts discovered at the Rule 16 pretrial scheduling and&#13
administration meeting to iden­tify whether the situation ought to be&#13
referred for a settlement convention. In cases involving limited&#13
destruction statements, an early settlement convention ahead of a magistrate&#13
decide pro­vides the parties an possibility to take care of the scenario&#13
in a price-productive fashion. The district choose may buy that the&#13
get-togethers exchange published discovery but restrict the number of&#13
depositions that the events could acquire prior to the settle­ment&#13
convention. This strategy is especially helpful in cost-shifting&#13
cases these as employment or client conditions, exactly where the&#13
attorneys’ costs can immediately outstrip the true damages and&#13
protect against a settlement at a later on day.

Occasionally a scenario may possibly be referred for a settlement&#13
confer­ence immediately after the shut of discovery, both in advance of&#13
dispositive motions have been resolved or just after. In the former&#13
circumstance, the district decide may possibly hope that the situation can be resolved&#13
with out the necessity of his or her ruling on a difficult or&#13
time-consuming movement for summary judgment that might not thoroughly&#13
dispose of the case. The district choose may well refer the scenario for a&#13
settlement conference after all disposi­tive motions are&#13
solved if the district decide believes that 1 or both equally of the&#13
get-togethers have to have a reality check out on the likeli­hood of a&#13
plaintiff’s good results, on a defendant’s avoidance of&#13
liability, or on the amount of damages that may possibly be awarded by the&#13
courtroom or the jury. If a justice of the peace choose can solve a case in much less&#13
than eight hours, the district judge may possibly con­sider that to be&#13
an efficient use of a judicial officer’s time if the memorandum&#13
view on the pending motion was predicted to take a 7 days or&#13
much more to complete or if a demo could be avoided.

Of training course, there are only time discounts if the situation settles.&#13
Because justice of the peace judges preside over their have consent instances in&#13
addition to managing situations, motions, and disputes referred by the&#13
district judge, they will expect the parties to be respectful of&#13
their time and negotiate swiftly. Liti­gants need to not assume&#13
a justice of the peace decide to allocate an total day to a settlement&#13
conference. A magistrate decide is not likely to be tolerant of a&#13
plaintiff whose opening de­mand is grossly unrealistic or of a&#13
defendant who would like to boost counteroffers by $500 a round. A&#13
personal mediator expects to get various hrs listening to the&#13
parties in or­der to recognize the dispute and to set up&#13
belief that fa­cilitates a negotiated compromise. Importantly,&#13
the personal mediator is compensated for this time. A justice of the peace&#13
decide, on the other hand, due to pressing judicial duties, does not&#13
have the luxury of spending hours creating belief with the&#13
get-togethers or conducting pre-meeting telephone calls to get a really feel&#13
for the backstory of the dispute. The base line right here is that a&#13
settlement convention with a justice of the peace decide is far more like the&#13
afternoon of a regular mediation all people desires to get to the&#13
point and do it immediately. If the events are not generating sufficient&#13
progress toward a resolu­tion, the judge will close the&#13

An additional distinction in between a private mediation and a settlement&#13
convention ahead of a justice of the peace decide is that settlement conferences&#13
tend to be far more evaluative than non-public mediations. The parties&#13
must be organized to explore what proof and law supports their&#13
respective positions and how damages will be calculated or&#13
defeated. It is im­portant to underline that the magistrate&#13
decide is imparting his or her evaluation of the case and no additional.&#13
Even with what some attorneys could think, U.S. Magistrate Judges do&#13
not focus on with U.S. District Judges the conditions referred for&#13
settlement conferences, and a magistrate decide for that reason has no&#13
know-how about how the district judge may possibly rule on any certain&#13
motion. On the other hand, magistrate judges can get in touch with on their possess know-how&#13
of the case legislation and jury verdicts to give the functions points to&#13
look at when analyzing their respective positions&#13
vis-à-vis settlement. If a situation does not settle, the&#13
magistrate choose communicates only that point to the district&#13
judge’s circumstance supervisor. If the scenario settles, the district&#13
judge’s scenario supervisor will be explained to when the get-togethers will post&#13
their closing files or how numerous days the court need to&#13
integrate into its conditional get of dismissal.

At the settlement convention, the justice of the peace choose will help&#13
in getting an agreement on material terms but will not draft a&#13
settlement settlement or provide proposed settlement documents to&#13
the functions. Recall, confidentiality applies to all settlement&#13
conferences before a U.S. Magistrate Judge, so the settlement&#13
convention may well not be utilised as a conduit to the district decide&#13
about grievances by a single social gathering that the other party has been&#13
uncooperative or has normally misbehaved in discovery. The&#13
district judge will not be informed of gives and demands designed in&#13
the settlement conference or why the situation did not settle.

Preparing for a settlement conference need to involve a&#13
pre-conference discussion with the shopper about the strengths and&#13
weaknesses of the scenario. The settlement meeting is not a very good&#13
time for your consumer to learn that his or her expectation of a&#13
substantial hurt award is unlikely, that a selected witness’s&#13
testimony was unfavorable, or that you have not specified a&#13
damages professional or taken a essential deposition and all deadlines have&#13
expired. You might be questioned to explain the factual foundation for your&#13
damages calculation. If you are seeking attorney’s service fees, be&#13
prepared to develop your billing documents. Possessing to admit at the&#13
conference that you have not held time information surely will not&#13
assist your bargaining situation in getting your costs as element of the&#13

Get-togethers referred for a settlement conference really should remember&#13
that it is a court docket continuing. The parties can reveal their&#13
respective cases to a judge, which at times can serve as a essential&#13
catharsis that allows pave the way for a settlement. Having said that, the&#13
court expects all parties and counsel to carry out on their own&#13
skillfully and with courtesy to the opposing celebration and to the&#13
courtroom. A continued failure to behave appropriately could conclusion the&#13
mediation and impair that attorney’s capacity to obtain foreseeable future&#13
referrals for settlement conferences. If a social gathering or an legal professional&#13
fails to seem for a scheduled settlement meeting, the&#13
justice of the peace decide may perhaps evaluate prices in opposition to the non-showing up occasion&#13
or counsel.

In sum, a referral to a justice of the peace judge for a settlement&#13
convention is a useful court docket resource not to be taken flippantly.&#13
Recall that even though a settlement convention ahead of a magistrate&#13
choose presents the identical cloak of confi­dentiality as non-public&#13
mediation, you and your shopper are showing up just before a judicial&#13
officer pursuant to a courtroom purchase. Be courteous and respectful of&#13
the court’s time. Be pre­pared to examine the merits of&#13
your situation and move quickly in your negotiations. Justice of the peace judges&#13
have properly settled both equally huge and small instances as a result of&#13
settlement conferences, but success is dependent on the parties’&#13
preparing and willingness to compromise. Make sure each you and&#13
your consumer are completely ready to explore settlement terms and to acquire&#13
edge of the evaluative nature of a settlement conference&#13
before a U.S. Magistrate Judge.

The Hon. Nancy K. Johnson (Ret.),&#13
who served as a United States Magistrate Decide in the Southern&#13
District of Texas for 30 years, is presently a full-time mediator&#13
and arbitrator with JAMS in Houston.

This write-up originally appeared in the Jan./Feb. 2021 edition&#13
of The Houston Law firm and is reprinted in this article by permission.


1 Janet Civil Justice Reform Act of 1990, 28 U.S.C.&#13
§§ 471-82.

2  Id. § 473.

3 Federal Magistrates Acts, 28 U.S.C. §&#13

4 If a scenario has been assigned to a magistrate choose for&#13
full pretrial administration, that justice of the peace choose can’t perform a&#13
settlement convention or refer the circumstance to another.

The information of this post is intended to provide a standard&#13
manual to the subject matter matter. Specialist advice should be sought&#13
about your unique conditions.