Leading Horses to Water: The Impact of an ADR “Confer and Report” Rule

This study examines the effects of a rule requiring lawyers to confer with opposing counsel regarding settlement and ADR early in litigation and to report the results of that discussion to the court. A comparison of civil litigators' practices before and after the rule was adopt ed showed no apparent increase in early discussions or in early settlements, the rule's ulti mate goal. Enforcing the requirement to report to the court did not seem to affect whether lawyers held early discussions, but did seem to increase the likelihood that lawyers filed that report. The article concludes by exploring what the findings of this and other studies suggest about the potential effectiveness of "confer and report" rules as well as other means of facil itating earlier discussions and settlements. Rule 16(g) of the Arizona Rules of Civil Procedure was amended in December ^2001 to promote the early consideration of settlement and the use of alternative dispute resolution (ADR) processes to facilitate earlier settlements. Rule 16(g)(2) now requires parties, within ninety days following the first appearance of the defen dant, to confer about the possibilities for a prompt settlement and whether an ADR process might be helpful in resolving the case and to report the outcome of that dis cussion to the court within thirty days thereafter. In addition, courts are empowered