How Cases Move Through Federal Courts
Civil Cases
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Settlement efforts and alternative dispute resolution
Sometimes in the course of the pretrial conferences, it becomes clear that the best outcome for both parties is to settle the civil case instead of going ahead with the trial--in fact, fewer than one out of twenty cases ever goes to trial.
Settling doesn’t mean the parties have decided to forgive and forget. What usually happens in a settlement is that the plaintiff agrees to accept an amount for damages that is less than he or she had asked for, and the defendant agrees to pay it simply to put an end to the proceedings.
There are a number of reasons parties settle, but several factors are probably central to their decision. By settling the case, they may be able to reach resolution more quickly, less expensively, and with less emotional wear and tear. They may also be able to fashion a settlement agreement that is more creative than a judgment that a jury or judge could award. And they can avoid the unpredictability of having a jury or judge decide their case.
Cases can reach settlement by several different paths. First, many parties settle their cases themselves, with no outside assistance. In the course of the pretrial conferences, parties often develop a clearer understanding of the money, time, and emotional costs that will be involved in a trial. Also, as more information is uncovered through discovery a party may become less confident of winning the case. Avoiding a trial through settlement becomes a better choice, and so the parties, through their attorneys, draw up the settlement terms out of court.
Second, a judge might make a special effort to help the parties settle the case by assisting them with settlement discussions or by referring them to a magistrate judge for settlement discussions.
Third, a judge might suggest that the parties enter into some type of alternative dispute resolution (ADR) procedure. ADR is now available in many district courts and also in some bankruptcy courts and in all courts of appeals.
The ADR Act of 1998 requires that each federal district court provide at least one form of ADR to litigants in civil cases. Whether a case is referred to ADR depends on the court in which the case is filed. In some courts, the decision whether to use an ADR process is left to the parties; in other courts, parties are expected to use an ADR process. In most courts, judges have authority to require parties to use ADR; some judges are more likely to refer cases to ADR than others.
The types of ADR procedures used in a federal court may include some or all of the following: mediation, arbitration, early neutral evaluation, summary jury trial, and settlement week.
Most ADR proceedings are conducted by professionals from the private sector, usually attorneys. A few district courts and most appellate courts employ mediators on staff. All ADR procedures in the federal courts are nonbinding, that is, parties are not bound by a proposed settlement or decision unless they agree to be bound by it.
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