David C. Tierney
4250 N. Drinkwater Blvd 4th Floor
Scottsdale, AZ 85251-3693
480-425-2620
[email protected]

This comment on the Petition to Abrogate Rule 16(g)(2) and Rule 84, Form 3 of the Arizona Rules of Civil Procedure (the “Petition”) is made on behalf of the State Bar of Arizona Alternative Dispute Resolution Section Executive Council (the “Section”). The Petition seeks to abrogate Rule 16(g)(2) and the related form because “lawyers have tended to ignore the requirement” of the Rule regarding conferring about alternative dispute resolution (“ADR”) and reporting to the court regarding that conference.
As noted in the Petition, the “laudable purpose of the rule is to promote early consideration of ADR.” The Section supports efforts to promote consideration of ADR by the parties in litigation, and raised concerns about the filing of the petition prior to its filing with the State Bar that abrogating Rule 16(g)(2) would have a negative impact on parties’ use of ADR and encouragement by trial courts to utilize those procedures. As a result, the Section conferred with the State Bar’s Civil Practice and Procedure Committee (“CPPC”) regarding the proposed changes to Rule 16(g)(2) and the related form. As noted in the Petition, CPPC is in the process of reviewing case management procedures under Rule 16 and trial-setting procedures under Rule 38.1, which would include a provision to expressly require consideration of ADR and encouraging parties to participate in ADR.
After consultation with CPPC, the Section concluded that because the form is not being used and the current Rule has no “sanctions,” it would not oppose the abrogation of the Rule. Further, the Section continues to support efforts by the courts to encourage participation in ADR, and believes that changes to Rule 16 and 38.1 should be made to require that the Court ascertain that ADR had been attempted (or there was good cause not to do so) before trial was scheduled. This is a practice now being followed by judges in Maricopa County (as well as other counties) in civil cases, and has had good results. The Section is working with CPPC and the State Bar Rules Committee to propose changes to Rules 16 and Rule 38.1 which will propose adoption of this practice in amendments to the Arizona Rules of Civil Procedure.