Current through Register Vol. 46, No. 39, September 25, 2024
(a) Settlement conference. At the time of
certification of the matter as ready for trial or at any time after the
discovery cut-off date, the court may schedule a settlement conference which
shall be attended by counsel and the parties, who are expected to be fully
prepared to discuss the settlement of the matter.
(b) Mandatory Settlement Conference. Unless
exempted as set forth herein, the parties in every case pending in the
Commercial Division must participate in a court-ordered mandatory settlement
conference (MSC) following the filing of a Note of Issue.
(1) Referral to MSC. Following the filing of
a Note of Issue, the parties must confer and file a request to proceed to a MSC
pursuant to one of the following four tracks. If all parties have agreed upon
the settlement conference track that they prefer, they may file a joint request
with a statement of preferred procedure for MSC. If the parties do not agree,
they must file separate requests with statements as to their preference for a
MSC track. The court will select the settlement conference track after
considering the parties' preferences, the available judicial and other
resources, and any other factors the court deems appropriate. The four possible
settlement conference tracks are as follows:
(A) The parties may agree to have a
settlement conference before the assigned justice or another judge pursuant to
Commercial Division Rule 3(b).
(B)
The court may refer the case to the Judicial Hearing Officer/Special Referee
office for assignment of a Judicial Hearing Officer or Special Referee to
conduct the MSC.
(C) The court may
refer the case to the ADR coordinator or other designated court official in the
judicial district where the case is pending for assignment, at no charge to the
parties, of a neutral selected from the roster of neutrals or mediators under
Part 146 of the Rules of the Chief Administrative Judge. If the parties wish to
continue talks with the neutral beyond the initial conference, an arrangement
will have to be made to retain such neutral at terms agreed to by the neutral
and the parties.
(D) The parties
may agree to engage a private neutral.
(2) Attendance at MSC. The MSC shall be
attended by a person with knowledge of the case and authority to settle the
case.
(3) Submissions to the
neutral conducting the MSC. The neutral shall determine whether a submission
should be provided to the neutral and the service thereof.
(4) Exemptions from MSC. MSC is mandatory for
all cases in the Commercial Division unless the assigned justice to the case,
for good cause shown, exempts the case from MSC under this Rule.
(5) Confidentiality. All attendees of the
MSC, including the assigned neutral, shall treat as confidential information
any settlement submission created expressly for use in the MSC, anything that
happened or was said during the course of or pursuant to the MSC, and any
positions taken or offers made during the MSC. Such material cannot be
disclosed to anyone not involved in the litigation or to the court, and may not
be used in any fashion in the litigation of the case.
(6) Report. Following the MSC, the parties
will advise the assigned justice whether a settlement was reached, and if a
settlement was reached, a date by which the parties expect to complete
documentation of the settlement. The parties shall not discuss any reasons why
a settlement was not reached.
(7)
Scheduling and Procedures. Any scheduling and procedural issues shall be
determined by the justice assigned to the case. If it is determined that the
MSC is to be held before a neutral other than the assigned justice, scheduling
and procedural issues with respect to the MSC shall be determined by the
neutral.
(8) Non-exclusive. Nothing
in the Rule shall preclude or replace any settlement practices used by the
court, by any individual justice, or as agreed to by the parties and the
assigned justice shall retain ultimate authority with respect to each aspect of
the MSC.
(c) Pre-trial
Conference. Prior to the pretrial conference, counsel shall confer in a good
faith effort to identify matters not in contention, resolve disputed questions
without need for court intervention and further discuss settlement of the case.
At the pre-trial conference, counsel shall be prepared to discuss all matters
as to which there is disagreement between the parties, including those
identified in Rules 27-29, and settlement of the matter. At or before the
pre-trial conference, the court may require the parties to prepare a written
stipulation of undisputed facts.
(d) Consultation Regarding Expert Testimony.
The court may direct that prior to the pre-trial conference, counsel for the
parties consult in good faith to identify those aspects of their respective
experts' anticipated testimony that are not in dispute. The court may further
direct that any agreements reached in this regard shall be reduced to a written
stipulation.
