Edward F. Sherman
Tulane University Law School
Christopher M. Fairman
Ohio State University (OSU) – Michael E. Moritz College of Law
26 Ohio State Journal on Dispute Resolution 327 (2011)
Mediation and offer of judgment provisions in the Federal Rules of Civil Procedures both have the objective of promoting settlement, but function independently. Both have sanction regimes to enforce compliance with their requirements, but the mediation sanction regime is quite limited, while offer of judgment rule sanction is the very centerpiece of the procedure. The offer of judgment rule could be a useful adjunct to mediation and vice versa, but such interaction is destined to remain underutilized unless changes are made. Two states – Minnesota and Michigan – have recognized the potential complementary nature of mediation and offer of judgment rules. This article examines the rule changes that those states have undertaken, which although a useful start are still far from what could be done ideally. The article recommends changes in four areas – amendments to rule 68 (offer of judgment) and 16 (pre-trial conference and settlement devices including mediation); changes in local rules; and use of the case evaluation process to complement offers of judgment. The scope of Rule 68 should be broadened to allow plaintiffs to make offers and allow the shifting of attorney’s fees under certain circumstances. The potential use of Rule 68 should be discussed during pretrial conferences, and Rule 16 can be easily amended to make this explicit. Mediators should be instructed to consider the impact of Rule 68 in their facilitation of court-connected mediation. While attaching cost-shifting directly to orders to mediate is unwise, adoption of a case evaluation process with cost-shifting would provide additional incentives to settle. If implemented, the changes suggested here would allow offer of judgment rules and mediation practice to work in tandem to encourage settlement.