Unconstitutionality Claimed for U.S. Western District of Pennsylvania's Mandatory ADR Program

In the case at issue, Plaintiff and Defendants in a U.S. Western District case could not stipulate to an Alternative Dispute Resolution (ADR) method, and the referenced?Motion for Clarification?resulted, with a partial grant of relief, and followed by the Motion to Certify for interlocutory appeal. The procedural history is set forth in the Motion to Certify.

One issue—being the unlimited variable additional fee issue—is framed within an illustrative dialog, as further set forth in the Motion to Certify:

[Citizen to WDPa] What is the cost of exercising my Constitutional right to a trial?

[WDPa to Citizen] Your Constitutional right to trial is paid in all material respects by your taxes, in addition to the case filing fee of $350, plus $52 in administrative fees, or $402. We are proud of our low cost to file a case in this District.

[Citizen to WDPa] Yes, but in researching the real fees, I am told that, in one particular case, a party had to pay another $500 in fees for mandatory mediation, more than double the amount of that filing fee. In another case, a party had to pay another $1,250 in mandatory fees for a “case evaluation,” more than a 300% in additional fees over that filing fee. In yet another similar case, a party had to pay for a “case evaluation,” and it cost the party another $2,250, 500% over the filing fee.

[WDPa to Citizen] We don’t know anything about those costs. We don’t even ask about those costs in our ADR Survey or Report of the Neutral. Those costs are up to the parties. It’s not our fault that the parties stipulate to use expensive neutrals; therefore, we don’t ask, we don’t know, so we don’t tell. Accordingly, those costs are not part of our transparency statistics.

Such as it is with many (or most) other litigating attorneys, these types of motions have only been avoided by?not-worth-the-fight?practicalities or resolution by counsel. However, after 30 years of practice, the motions found a cause to be filed.

In short, the United States District Court in the Western District of Pennsylvania, such as many courts, interposes an ADR procedure in order to continue access to the requested relief at trial. Courts generally have an inherent substantive power to compel ADR as part of the trial process, and litigators participate in good faith all the time.

However, depending upon how the ADR is implemented by respective courts, the ADR procedure can implicate?substantive due process, procedural due process, equal protection,?and other issues, because the ADR imposition is a block (condition) to the right to trial. In the U.S. Western District's implementation, that block is a?court-created?imposition beyond the?case filing fee,?a?variable unequal?cost for different parties, without any cap or limitation of expense, and potentially more than the?least restrictive?means to accomplish the intended goal.

Moreover, as part of the ADR Program, the Western District orders the parties to consent; indeed, a court order that places a party on the rack and demands the party voluntarily to consent should violate the conscience of any lawyer or law student's sense of fairness. The Western District commands that the parties enter into the servitude of a forced collateral "agreement" with a third-party for ADR services. The court lacks any proper jurisdictional power to order a party voluntarily to "agree" or to contract. An "agreement" is a document of assent, and cannot be compelled. The law in the United States abhors any form of servitude by forced consent.

When the ADR method is?stipulated?(being by voluntary assent),?there is no issue, but, here, the question is the scope of jurisdiction of compelling a method by?order of court. And, indeed, not all ADR methods are equal; to wit: some methods of ADR, such as an "Early Neutral Evaluation," being a "case evaluation" is not only significantly more costly, but also duplicates the primary role of the attorney of record, while imposing appurtenant elevated?compliance obligations and duties?for which a party can be?sanctioned?for failure to comply. Unlike tried and true mediations controlled by the parties, third-party "case evaluations" can be tricky business for trial practitioners, because "case evaluations" adduce and evaluate evidence early in that forum, which can create concomitant strategic prejudicial risks. Moreover, with Minimum Wage at less than $10 per hour, and the economy already racked, the Western District directly or indirectly imposes a cost of independent ADR "neutrals" that can be $500 per hour or more for an unlimited volume of hours of ADR service, costing thousands of additional dollars, simply to exercise a Constitutional right to trial.

We recognize that the noble systemic goals of a federal judiciary and the noble goals of counsel for particular litigating parties are interdependent, but they are not always perfectly aligned. And the Motions have some effect of exposing that concept. It should be noted that this issue reflects only one venue, and other venues have different procedures and defaults, as set forth in the?Motion to Certify.

The?Motion for Clarification?and Motion to Certify are presented here, because litigating practitioners and other students of the law may find the Motions helpful to build upon for analytical academic and/or practical purposes in future situations or other jurisdictions. They are placed here with the greatest respect for the judiciary, and in the interests of justice, improvement, and further self-assessment.

Motion for Clarification,?Motion to Certify

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