Local Rule Rule 9019-2: MEDIATION

Rule 9019-2 MEDIATION A. Description of Process. 1. "Mediation" means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem-solving and exploring settlement alternatives. 2. Referral by Bankruptcy Judge. Except as hereinafter provided, the Bankruptcy Judge may order any contested bankruptcy matter, adversary proceeding, or selected issue to be referred to mediation.

B. Conduct of the Mediation. 1. Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference shall be held within sixty (60) days of the order of referral. 2. Role of Counsel. Unless otherwise ordered by the court, counsel to the parties shall attend and participate in the mediation conference. The role of counsel shall be limited to general consultation pursuant to the rules governing the attorney-client privilege. 3. Notice. Within fourteen (14) days after the order of referral, the mediator shall notify the parties in writing of the date, time, and place of the mediation conference. 4. The mediation conference may take place in a courtroom designated by the Court or any other place designated by the mediator. 5. The mediator may adjourn the mediation conference at any time and may set a date and a time for reconvening the adjourned conference. No further notification is required to parties present at the conference. 6. The mediator may meet and consult with the parties or their counsel, on any issue pertaining to the subject matter of the mediation. Should the mediator wish to discuss a matter with the parties or their counsel, the mediator must inform all parties to the mediation of the location and subject matter of such meeting. The mediator shall keep a written record of any and all meetings conducted with the parties or their counsel, and such record shall be made available to the parties.

C. Motion to Dispense with Mediation. A party may move, within fourteen (14) days after the order directing mediation, to dispense with mediation if: 1. The issue to be considered has been previously mediated between the same parties; 2. The issue presents a question of law only; 3. Other good cause is shown.

D. Certified Mediators. 1. A list of all persons certified as mediators shall be maintained by the District Court. 2. The mediator shall take the oath or affirmation prescribed by 28 U.S.C. § 453 before serving as a mediator. 3. The mediator has a duty to define and describe the process of mediation and its costs during an orientation session with the parties before the mediation conference begins. The orientation should include the following: a. mediation procedures; b. the differences between mediation and other forms of conflict resolution, including therapy and counseling; c. the circumstances under which the mediator may meet alone with either of the parties or with any other person; d. the confidentiality provisions provided by Title 5, Section 854 of the Virgin Islands Code. e. the duties and responsibilities of the mediator and the parties; f. the fact that any agreement reached must be reached by mutual consent of the parties; and g. the information necessary for defining the disputed issues. 4. The mediator has a duty to be impartial and to advise all parties of any circumstances bearing on the mediator's possible bias, prejudice or lack of impartiality. Any person selected as a mediator shall be disqualified for bias, prejudice or impartiality as provided by 28 U.S.C. § 144 and shall disqualify him/herself in any action in which he/she would be required under 28 U.S.C. § 455 to disqualify him/herself if he/she were a judge. 5. A mediator appointed by the Court pursuant to these rules shall have judicial immunity in the same manner and to the same extent as a judge. 6. Any party may move the Court to enter an order disqualifying a mediator for good cause. Mediators have a duty to disclose any fact which would be grounds for disqualification. If the Court rules that a mediator is disqualified from hearing a matter, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators from disqualifying themselves or refusing any assignment. The time for mediation shall be tolled during any periods in which a motion to disqualify is pending.

E. Appointment of Mediator. 1. Within seven (7) days of the order requiring the parties to participate in mediation, the parties may agree upon a stipulation approved by the Court designating: a. a certified mediator; or b. a mediator who does not meet the certification requirements of the rules but who, in the opinion of the parties and upon review by the Court, is otherwise qualified by training or experience to mediate all or some of the issues in the particular case. 2. If the parties cannot agree upon a mediator within seven (7) days of the order directing the parties to mediation, the Court may appoint a certified mediator selected by rotation or by such other procedures as may be adopted by the Court.

F. Compensation of Mediator. 1. The mediator shall be compensated by the parties at his normal hourly rate, which shall be disclosed to the parties. Each party shall pay one-half or such other proportionate share of the total charges of the mediator as may be agreed upon, unless the mediator and/or the Court determines that one party has not mediated in good faith. a. If the parties do not reach any agreement as to any matter as a result of mediation, or if the mediator determines that no settlement is likely to result from the mediation, the mediator shall report the lack of an agreement to the Court without comment or recommendation. With the consent of the parties, the mediator's report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. 2. If an agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any. The agreement shall be filed when required by law or with the parties' consent. If the agreement is not filed, a joint stipulation of dismissal shall be filed. By stipulation of the parties, the agreement may be electronically or stenographically recorded. In such event, the transcript may be filed with the Court.

G. Certification of Mediators. For certification, a mediator: 1. must complete a minimum of twenty (20) hours in a training program approved by the Bankruptcy Court or any other District or Bankruptcy Court. Also, a person certified as a mediator by the American Arbitration Association, or any other national organization approved by the Bankruptcy Court shall be deemed to qualify under this section as a Bankruptcy Court Mediator. 2. A mediator must also meet one of the following minimal requirements: a. The mediator may be a member in good standing of the Virgin Islands Bar with at least five years of Virgin Islands practice, and be an active member of the Virgin Islands Bar within one year of application for certification; or, b. Paragraph (1) notwithstanding, the Chief Judge, upon written request setting forth reasonable and sufficient grounds, may certify as a Bankruptcy Court mediator a retired judge who was a member of the bar in the state or Territory in which the judge presided. The judge must have been a member in good standing of the bar of another state for at least five years immediately preceding the year certification is sought and must meet the training requirements of subsection (1) above; or c. The mediator may be the holder of a master's degree and be a member in good standing in his or her professional field with at least five (5) years of practice in the Virgin Islands; and, 3. Notwithstanding the foregoing, the Court may, in the absence of an available pool of certified mediators, appoint as a mediator a qualified person acceptable to the Court and the parties.

H. Types of Matters Subject to Mediation. The Court may assign to mediation any dispute arising in an adversary proceeding, contested matter or otherwise in a bankruptcy case.

I. Confidentiality of Mediation. 1. Each party involved in a court-ordered mediation conference has a privilege to refuse to disclose, and to prevent any person present at the proceeding from disclosing, communications made during such proceeding. 2. Any or all communications, written or oral, made in the course of a mediation proceeding, other than an executed settlement agreement, shall be inadmissible as evidence in any subsequent legal proceeding, unless all parties agree otherwise.

J. Interim or Emergency Relief. A mediator may apply to the Court for interim or emergency relief at any time, at the initiation of the mediator upon consultation with the parties, or at the parties' request. Mediation shall continue while such a motion is pending absent a contrary order of the Court or a decision of the mediator to adjourn pending disposition of the motion. Time for completing mediation shall be tolled during any periods where mediation is interrupted pending resolution of such a motion.

K. Sanctions for Failure to Appear and Participate in Mediation. If a party, without good cause, fails to appear at a duly noticed mediation conference or fails to participate in the mediation in good faith, the Court may impose sanctions, including an award of mediator and attorney fees and other costs, against the party failing to appear or found not to have mediated in good faith. If, in the opinion of the mediator, a party has not participated in the mediation in good faith, and notwithstanding any other provisions of this rule, the mediator shall notify the referring judge in writing. If a party to mediation is a public entity, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision making body of the entity. Otherwise, unless stipulated by the parties, a party is deemed to appear at a mediation conference if the following persons are physically present: 1. The party or its representative having full authority to settle without further consultation; and 2. A representative of the insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to settle without further consultation.