28 U.S.C. § 653 — Neutrals

Page 317 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 653 the Administrative Office required under section 604(a)(3) [28 U.S.C. 604(a)(3)], statistical information about the implementation of chapter 44, as added by section 901 of this Act. ‘‘(b) REPORT BY FEDERAL JUDICIAL CENTER.—Not later than 5 years after the date of enactment of this Act [Nov. 19, 1988], the Federal Judicial Center, in consulta- tion with the Director of the Administrative Office of the United States Courts, shall submit to the Congress a report on the implementation of chapter 44, as added by section 901 of this Act, which shall include the fol- lowing: ‘‘(1) A description of the arbitration programs au- thorized by such chapter, as conceived and as imple- mented in the judicial districts in which such pro- grams are authorized. ‘‘(2) A determination of the level of satisfaction with the arbitration programs in those judicial dis- tricts by a sampling of court personnel, attorneys, and litigants whose cases have been referred to arbi- tration. ‘‘(3) A summary of those program features that can be identified as being related to program acceptance both within and across judicial districts. ‘‘(4) A description of the levels of satisfaction rel- ative to the cost per hearing of each program. ‘‘(5) Recommendations to the Congress on whether to terminate or continue chapter 44, or, alter- natively, to enact an arbitration provision in title 28, United States Code, authorizing arbitration in all Federal district courts.’’ EFFECT ON JUDICIAL RULEMAKING POWERS Pub. L. 100–702, title IX, § 904, Nov. 19, 1988, 102 Stat. 4663, provided that: ‘‘Nothing in this title [enacting this chapter and provisions set out as notes under this section and section 652 of this title], or in chapter 44, as added by section 901 of this Act, is intended to abridge, modify, or enlarge the rule making powers of the Federal judiciary.’’ AUTHORIZATION OF APPROPRIATIONS Pub. L. 105–315, § 11, Oct. 30, 1998, 112 Stat. 2998, pro- vided that: ‘‘There are authorized to be appropriated for each fiscal year such sums as may be necessary to carry out chapter 44 of title 28, United States Code, as amended by this Act.’’ Pub. L. 100–702, title IX, § 905, Nov. 19, 1988, 102 Stat. 4664, as amended by Pub. L. 103–192, § 1(b), Dec. 14, 1993, 107 Stat. 2292; Pub. L. 103–420, § 3(a), Oct. 25, 1994, 108 Stat. 4345; Pub. L. 105–53, § 1, Oct. 6, 1997, 111 Stat. 1173, provided that: ‘‘There are authorized to be appropriated for each fiscal year to the judicial branch such sums as may be necessary to carry out the purposes of chapter 44, as added by section 901 of this Act. Funds appro- priated under this section shall be allocated by the Ad- ministrative Office of the United States Courts to Fed- eral judicial districts and the Federal Judicial Center. The funds so appropriated are authorized to remain available until expended.’’ § 652. Jurisdiction (a) CONSIDERATION OF ALTERNATIVE DISPUTE RESOLUTION IN APPROPRIATE CASES.—Notwith- standing any provision of law to the contrary and except as provided in subsections (b) and (c), each district court shall, by local rule adopted under section 2071(a), require that litigants in all civil cases consider the use of an alternative dispute resolution process at an appropriate stage in the litigation. Each district court shall provide litigants in all civil cases with at least one alternative dispute resolution process, in- cluding, but not limited to, mediation, early neutral evaluation, minitrial, and arbitration as authorized in sections 654 through 658. Any dis- trict court that elects to require the use of al- ternative dispute resolution in certain cases may do so only with respect to mediation, early neutral evaluation, and, if the parties consent, arbitration. (b) ACTIONS EXEMPTED FROM CONSIDERATION OF ALTERNATIVE DISPUTE RESOLUTION.—Each dis- trict court may exempt from the requirements of this section specific cases or categories of cases in which use of alternative dispute resolu- tion would not be appropriate. In defining these exemptions, each district court shall consult with members of the bar, including the United States Attorney for that district. (c) AUTHORITY OF THE ATTORNEY GENERAL.— Nothing in this section shall alter or conflict with the authority of the Attorney General to conduct litigation on behalf of the United States, with the authority of any Federal agen- cy authorized to conduct litigation in the United States courts, or with any delegation of litigation authority by the Attorney General. (d) CONFIDENTIALITY PROVISIONS.—Until such time as rules are adopted under chapter 131 of this title providing for the confidentiality of al- ternative dispute resolution processes under this chapter, each district court shall, by local rule adopted under section 2071(a), provide for the confidentiality of the alternative dispute resolu- tion processes and to prohibit disclosure of con- fidential dispute resolution communications. (Added Pub. L. 100–702, title IX, § 901(a), Nov. 19, 1988, 102 Stat. 4659; amended Pub. L. 105–315, § 4, Oct. 30, 1998, 112 Stat. 2994.) Editorial Notes AMENDMENTS 1998—Pub. L. 105–315 amended section generally, sub- stituting provisions relating to alternative dispute res- olution jurisdiction for provisions relating to arbitra- tion jurisdiction. Statutory Notes and Related Subsidiaries EXCEPTION TO LIMITATION ON MONEY DAMAGES Pub. L. 100–702, title IX, § 901(c), Nov. 19, 1988, 102 Stat. 4663, provided that notwithstanding establish- ment by former section 652 of this title of a $100,000 limitation on money damages with respect to cases re- ferred to arbitration, a district court listed in former section 658 of this title whose local rule on Nov. 19, 1988, provided for a limitation on money damages of not more than $150,000, could continue to apply the higher limitation, prior to repeal by Pub. L. 105–315, § 12(a), Oct. 30, 1998, 112 Stat. 2998. § 653. Neutrals (a) PANEL OF NEUTRALS.—Each district court that authorizes the use of alternative dispute resolution processes shall adopt appropriate processes for making neutrals available for use by the parties for each category of process of- fered. Each district court shall promulgate its own procedures and criteria for the selection of neutrals on its panels. (b) QUALIFICATIONS AND TRAINING.—Each per- son serving as a neutral in an alternative dis- pute resolution process should be qualified and trained to serve as a neutral in the appropriate alternative dispute resolution process. For this purpose, the district court may use, among oth- ers, magistrate judges who have been trained to Page 318 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 654 1 So in original. The word ‘‘section’’ probably should not ap- pear. serve as neutrals in alternative dispute resolu- tion processes, professional neutrals from the private sector, and persons who have been trained to serve as neutrals in alternative dis- pute resolution processes. Until such time as rules are adopted under chapter 131 of this title relating to the disqualification of neutrals, each district court shall issue rules under section 2071(a) relating to the disqualification of neutrals (including, where appropriate, disquali- fication under section 455 of this title, other ap- plicable law, and professional responsibility standards). (Added Pub. L. 100–702, title IX, § 901(a), Nov. 19, 1988, 102 Stat. 4660; amended Pub. L. 105–315, § 5, Oct. 30, 1998, 112 Stat. 2995.) Editorial Notes AMENDMENTS 1998—Pub. L. 105–315 amended section generally, sub- stituting provisions relating to neutrals in alternative dispute resolution process for provisions relating to powers of arbitrator and arbitration hearing. § 654. Arbitration (a) REFERRAL OF ACTIONS TO ARBITRATION.— Notwithstanding any provision of law to the contrary and except as provided in subsections (a), (b), and (c) of section 652 and subsection (d) of this section, a district court may allow the referral to arbitration of any civil action (in- cluding any adversary proceeding in bank- ruptcy) pending before it when the parties con- sent, except that referral to arbitration may not be made where— (1) the action is based on an alleged viola- tion of a right secured by the Constitution of the United States; (2) jurisdiction is based in whole or in part on section 1343 of this title; or (3) the relief sought consists of money dam- ages in an amount greater than $150,000. (b) SAFEGUARDS IN CONSENT CASES.—Until such time as rules are adopted under chapter 131 of this title relating to procedures described in this subsection, the district court shall, by local rule adopted under section 2071(a), establish proce- dures to ensure that any civil action in which arbitration by consent is allowed under sub- section (a)— (1) consent to arbitration is freely and know- ingly obtained; and (2) no party or attorney is prejudiced for re- fusing to participate in arbitration. (c) PRESUMPTIONS.—For purposes of subsection (a)(3), a district court may presume damages are not in excess of $150,000 unless counsel certifies that damages exceed such amount. (d) EXISTING PROGRAMS.—Nothing in this chap- ter is deemed to affect any program in which ar- bitration is conducted pursuant to section 1 title IX of the Judicial Improvements and Access to Justice Act (Public Law 100–702), as amended by section 1 of Public Law 105–53. (Added Pub. L. 100–702, title IX, § 901(a), Nov. 19, 1988, 102 Stat. 4660; amended Pub. L. 105–315, § 6, Oct. 30, 1998, 112 Stat. 2995.) Editorial Notes REFERENCES IN TEXT Title IX of the Judicial Improvements and Access to Justice Act (Public Law 100–702), as amended by section 1 of Public Law 105–53, referred to in subsec. (d), is title IX of Pub. L. 100–702, Nov. 19, 1988, 102 Stat. 4659, which enacted this chapter and provisions set out as notes under sections 651 and 652 of this title. Section 1 of Pub. L. 105–53, Oct. 6, 1997, 111 Stat. 1173, amended section 905 of title IX of Pub. L. 100–702, which is set out as a note under section 651 of this title. AMENDMENTS 1998—Pub. L. 105–315 amended section generally, sub- stituting provisions relating to arbitration for provi- sions relating to arbitration award and judgment. § 655. Arbitrators (a) POWERS OF ARBITRATORS.—An arbitrator to whom an action is referred under section 654 shall have the power, within the judicial district of the district court which referred the action to arbitration— (1) to conduct arbitration hearings; (2) to administer oaths and affirmations; and (3) to make awards. (b) STANDARDS FOR CERTIFICATION.—Each dis- trict court that authorizes arbitration shall es- tablish standards for the certification of arbitra- tors and shall certify arbitrators to perform services in accordance with such standards and this chapter. The standards shall include provi- sions requiring that any arbitrator— (1) shall take the oath or affirmation de- scribed in section 453; and (2) shall be subject to the disqualification rules under section 455. (c) IMMUNITY.—All individuals serving as arbi- trators in an alternative dispute resolution pro- gram under this chapter are performing quasi- judicial functions and are entitled to the immu- nities and protections that the law accords to persons serving in such capacity. (Added Pub. L. 100–702, title IX, § 901(a), Nov. 19, 1988, 102 Stat. 4661; amended Pub. L. 105–315, § 7, Oct. 30, 1998, 112 Stat. 2996.) Editorial Notes AMENDMENTS 1998—Pub. L. 105–315 amended section generally, sub- stituting provisions relating to arbitrators for provi- sions relating to trial de novo. § 656. Subpoenas Rule 45 of the Federal Rules of Civil Procedure (relating to subpoenas) applies to subpoenas for the attendance of witnesses and the production of documentary evidence at an arbitration hear- ing under this chapter. (Added Pub. L. 100–702, title IX, § 901(a), Nov. 19, 1988, 102 Stat. 4662; amended Pub. L. 105–315, § 8, Oct. 30, 1998, 112 Stat. 2996.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in text, are set out in the Appendix to this title.