Effective February 1, 2015, the United States District Court for the Eastern District of Michigan implemented new Local Rules dealing with Alternative Dispute Resolution that significantly differ and expand upon the predecessor Local Rule. The replaced LR 16.3, adopted in 1998, dealt solely with “Mediation” (now called case evaluation) and incorporated the process provided in MCR 2.403. These new LRs will significantly impact the dynamics of litigation in the Eastern District and litigators should fully familiarize themselves with these rules, their impact on litigation and ADR practices, and how the LR and the selection of the appropriate neutral might be best leveraged to sub-serve the interests of their clients.
In McKelvey v. Secretary of United States Army, the plaintiff, a soldier wounded in action, became the victim of workplace discrimination after he returned home and took civilian position with the Army as an operations specialist. He later sued the Secretary of the Army for disability discrimination in violation of the Rehabilitation Act of 1973, but the end result was much different than expected. With the benefit of hindsight, the outcome may be dismissed as “bad luck,” but the decision of when, how, and with which calculations and factors one should resolve a claim is by no means simple, regardless of whether you are the plaintiff or the defendant.
Fast Track/Expedited Jury Trials have not gained significant traction in Michigan. However, in a number of jurisdictions that have experimented with this particular ADR technique (primarily in cases where the exposure is $100,000 or less), the benefits to the litigants have been demonstrable. Litigants are afforded the opportunity to have their day in court and receive a binding jury determination from a jury selected from the Court’s standard jury pool. It is a trial process that is far less expensive and faster than a traditional jury trial.
The Macomb County Bar Association’s ADR Committee, at the suggestion of Judge John Foster, Macomb County’s Chief Judge and appointed Specialized Business Court Judge, has compiled a comprehensive Taxonomy of ADR. The Taxonomy is organized to explore three different ADR techniques: adjudicative, evaluative and facilitative. Each technique describes the associated ADR processes.
The Taxonomy also provides a number of forms and checklists for consideration by counsel and the judiciary.
Strategically utilized in the construction industry, Dispute Resolution Advisors (DRA) have the potential of resolving disputes fairly, quickly, and cost effectively in a vast array of settings and contractual arrangements.
DRAs can be most effective in pursuing “Real Time Mediations” and crafting dispute resolution mechanisms that are proportionate, progressive and cost effective.
