5.1 Use of Settlement Conferences

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

5.1 USE OF SETTLEMENT CONFERENCES

5.101 Fed. R. Civ. P. 16 as Basis for a Court-Ordered Settlement Conference.

Under Fed. R. Civ. P. 16(a), a district court in any action may direct the attorneys and any unrepresented parties to appear for a pretrial conference, including for the purpose of (i) expediting the disposition of the action and (ii) facilitating the settlement of the case.

Under Fed. R. Civ. P. 16(c)(2)(I), at any such pretrial conference, the court may take appropriate action with respect to "settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule." ¹³³⁹ Where appropriate, "the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement." ¹³⁴⁰ Note that some judges will not allow phone appearance by the client representative.

Both the Eastern and Western District of Virginia make extensive use of their magistrate judges for conducting settlement conferences. At the Fed. R. Civ. P. 16(b) scheduling conference, a settlement conference may be set; at a minimum, counsel will be asked if they wish to schedule one. For example, Judge Dillon's standard scheduling order states that "The parties are encouraged to engage in settlement discussions. Upon motion of any party, the court will refer the case to a magistrate judge to conduct mediation."

5.102 Settlement and Alternative Dispute Resolution.

A. In General.

Both the Eastern and Western District provide explicitly for settlement and alternative dispute resolution in their respective local rules: E.D. Va. Civ. R. 83.6 for the Eastern District, and W.D. Va. Civ. R. 83 for the Western District. These rules endorse the continued use of settlement conferences as a form of mediation. In accordance with 28 U.S.C. §§ 651, 652, and 653, mediation is authorized, but not required, as an alternative dispute resolution that may be used in all civil actions. ¹³⁴¹ Under 28 U.S.C. § 654, the District Court may even refer many cases to arbitration, with the parties' consent. In the Western District, a request to refer a case to mediation may be made ex parte and will be kept confidential. ¹³⁴²

B. Selection of Mediators or Neutrals—Eastern District.

The parties by consent may select and compensate any mutually acceptable non-judicial mediator or neutral. No mediator or neutral may be compensated by contingent fee.

All district judges, magistrate judges, and bankruptcy judges are authorized (i) to act as mediators or neutrals; and (ii) to appoint as mediators or neutrals any appropriately trained nonjudicial person, in which event the appointing order shall establish the compensation to be paid for the services of such nonjudicial person and shall schedule a time for completion of mediation.

C. Selection of Mediators or Neutrals—Western District.

Alternative dispute resolution shall not be automatically required in every case. Upon joint motion of all parties, the...