Alternative Dispute Resoluti

in the U.S. District Cou

A variety of procedural choices

Alternative dispute resolution (ADR) mechanisms can be public (initiated by and involving the court) or private (initiated and controlled 

by the parties). Some of the public ADR mechanisms used in civil 

disputes in U.S. federal district (trial-level) courts include

• court-annexed mediation, where a neutral third party facilitates 

discussion between the parties to resolve the case

• court-annexed arbitration, where a neutral third party hears 

presentations by the parties’ lawyers and issues a nonbinding 

written decision

• early neutral evaluation (ENE), where a neutral third party 

hears presentations by the parties’ lawyers and evaluates the 

strengths and weaknesses of their claims and defenses

• summary jury or summary bench trial, where the lawyers present 

their case in summary form to a jury or a judge and the decision maker issues an advisory decision

• settlement week, where a court sets aside hearings for a week 

and allows parties who are ready for trial to use the courtrooms to mediate disputes with the help of experienced 

mediators

• special masters, where a judge appoints an experienced lawyer, 

academic, former trial judge, or magistrate judge to mediate

a dispute under Rule 53 of the Federal Rules of Civil Procedure

In addition to these ADR procedures, many judges conduct 

settlement conferences under the authority of Rule 16 of the Federal 

Rules of Civil Procedure. Mediation and judge-hosted settlement 

conferences are the most commonly used methods for assisting parties 

with settlement negotiations.

ADR authority

The Alternative Dispute Resolution Act of 1998 requires every federal 

district court to implement an ADR program that offers at least one 

form of ADR to parties in civil cases. The Act authorizes the courts to 

require cases to participate in ADR but limits this authority to media-
tion and ENE. The Act also gives the courts authority to decide which 

ADR mechanism(s) to provide, types of cases to refer to ADR, and the 

qualifications and compensation of ADR neutrals. Consequently, ADR 

programs vary considerably from court to court.

Providers and fees in court-annexed ADR

In some courts, judges serve as mediators, although many judges prefer 

not to conduct mediations in their own cases because the disputes may 

proceed to trial. To avoid conflict between their mediator and trial 

roles, judges may refer cases to a colleague for mediation.

In other courts, an entity or individual—often a lawyer—provides skilled, neutral assistance in resolving disputes. Many of these 

courts have established panels of outside neutrals who must meet 

specified training requirements. Some courts require the parties to 

compensate neutrals; others require panel neutrals to serve without 

compensation.

Referrals

Some courts require all civil cases to attempt some form of ADR 

before trial. The parties are not required to reach binding resolution, 

however. If they fail to reach an agreement, the dispute continues 

through the regular litigation process.

Some courts refer only certain disputes to ADR, based on the 

parties’ willingness to use ADR voluntarily or on the determination of 

the judge or the court’s ADR administrator that a particular dispute 

is appropriate for ADR. Parties may also engage in private forms of 

ADR at any time before judgment.

Benefits of ADR

ADR has several advantages.

• Courts can decrease case backlogs, ensuring efficient use of 

judicial resources.

• Parties can obtain speedy resolution of their disputes, often 

in a less formal setting than court. ADR can also provide 

procedures and outcomes that are more closely tailored to the 

parties’ individual needs.

• Parties are often more satisfied with the outcomes and processes available in ADR than in litigation.

• Lawyers diversify their skills by acting either as counsel in 

ADR processes or as ADR neutrals. Lawyers using ADR can 
also provide clients with dispute resolution services that are 

more appropriate to the types of issues at stake.

Enforcement

Court-annexed ADR decisions and agreements are nonbinding in 

every form of ADR, unless the parties agree to make the outcome 

binding. In that case, their signatures on the agreement create a contract that is enforceable in the same way as any other contract.

Factors for a successful court-annexed ADR program

An ADR program must have a reliable method for referring cases to 

ADR, whether through the judge talking with the parties, a staff person screening cases for eligibility, or some other method that ensures 

cases go to ADR. A program without cases will not inspire confidence.

An ADR program needs supporters respected in the legal 

community, such as prominent judges, to champion the program and 

promote its use. An ADR program further needs a qualified person in 

the court to manage and oversee it. ADR neutrals, if called for, must 

likewise be well-trained and respected—parties will not use ADR if 

they do not trust neutrals or the process.

ADR processes should be designed with empirically identified 

“best practices” in mind. Experience suggests, for example, that ADR 

works best when a party with decision-making authority attends the 

procedure. Courts should therefore indicate whether and to what 

extent parties (as opposed to their lawyers or representatives) must

attend ADR sessions. In addition, the rules for the ADR process—

particularly the rules that define the process and describe case selection, neutral selection, compensation, timing, and how to file a settlement—should be readily accessible to parties who file in the court and 

who are referred to ADR.

Further Resources

A report by the Federal Judicial Center provides a brief history of 

alternative dispute resolution (ADR) in the federal district courts, 

discussing the statutes that prompted ADR initiatives and noting 

policy guidance and support to assist courts in establishing ADR 

programs. The report also includes a summary of ADR procedures 

authorized in the district courts as of late 2011. See http://www.

fjc.gov/public/pdf.nsf/lookup/adr2011.pdf/$file/adr2011.pdf
A resource directory of all state mediation and ADR programs has 

been compiled by the Center for Appropriate Dispute Resolution 

in Special Education (CADRE). See www.directionservice.org/

cadre/pdf/State%20ADR-Mediation%20Directory.pdf.

Information on the use of ADR by the U.S. federal government is 

available through the U.S. Department of Justice at www.justice.

gov/olp/adr/doj-statistics.htm. A compendium of U.S. federal 

district court rules on ADR is also available through the U.S. 

Department of Justice (www.justice.gov).

Federal Judicial Center

International Judicial Relations Office

One Columbus Circle NE

Washington DC 20002-8003

www.fjc.gov