M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 16, N.D.R.Civ.P.; Pretrial Conferences, Scheduling, Management
The Committee has instructed staff to incorporate ABA Discovery Guideline 9, which instructs that: "The court should encourage counsel at all times to use alternative dispute resolution mechanisms to resolve all substantive issues in civil litigation."
North Dakota encourages alternative dispute resolution through N.D.R.Ct. 8.8. Under N.D.R.Civ.P. 16(a), parties can request that alternative dispute resolution be put on the agenda of a pretrial conference. Jurisdictions that require pretrial and discovery conferences, like the federal courts, require discussion of alternative dispute resolution at these conferences.
North Dakota judges obviously have the inherent power to "encourage" counsel and parties to use alternative dispute resolution. Arizona, which like North Dakota does not require pretrial scheduling or discovery conferences, incorporated language into Ariz.R.Civ.P. 16 that gives courts the power to "direct" parties to use alternative dispute resolution methods.
A draft version of N.D.R.Civ.P. 16 incorporating the Arizona language allowing courts to take a more active role in recommending alternative dispute resolution is presented for the Committee's review. After the Committee discusses the rule draft, it may wish to consider referring the proposed amendments to the Alternative Dispute Resolution Committee for additional comment.