Local Rule LR88.1: Mediation.

LR88.1. Mediation.

(a) Purpose and Scope.

Pursuant to the Alternative Dispute Resolution Act of 1998, 28 U.S.C. §§ 651 et seq., the court authorizes and encourages the use of alternative dispute resolution (ADR) in all civil actions. This rule implements court-sponsored mediation in accordance with the ADR Act.

(b) Duty to Consider ADR.

The parties shall consider mediation and/or other ADR processes in accordance with LR16.2 and LR26.1. Nothing in this rule precludes: (1) parties from agreeing to private ADR; (2) the court from ordering non-binding ADR outside of this rule; or (3) parties and the court from considering any other type of ADR, including a summary jury trial.

(c) Mediation Judge.

A magistrate judge shall be appointed to serve as the mediation judge who shall have primary responsibility for the mediation program.

(d) Mediator Panel.

The clerk shall publish and maintain a list of mediators who have been recommended by the mediation judge and approved by the court. The mediator's role is to facilitate the voluntary resolution of cases.

(e) Submission to Mediation.

(1) By Stipulation.

Parties may stipulate to submit a civil action to mediation. The parties may stipulate to the appointment of a mediator from the panel of mediators provided in this rule, subject to the consent of the selected mediator. If the parties have stipulated to mediation but are unable to agree on a mediator, the court may appoint a mediator from the panel.

(2) By Court Order.

Notwithstanding subsection (e)(1), at any time before the entry of final judgment, the court may, on its own motion or at the request of any party after affording the parties an opportunity to be heard, order the parties to participate in mediation and/or any other non-binding ADR process. However, when the court orders the appointment of a compensated mediator, the parties shall have the right to select the mediator by agreement, provided they do so within the time frame set by the court. If no agreement is reached, the court may select the mediator.

(f) Mediation Procedure.

Upon submission of an action to mediation and appointment of a mediator, the plaintiff shall provide a copy of the stipulation or order to the mediator together with a list of the names and contact information of counsel for all appearing parties and/or self-represented litigants. All mediation procedures shall be determined by the mediator.

(g) Attendance at Mediation.

Lead counsel and clients, representatives, or third persons with full settlement authority shall attend, in person, all mediation conferences scheduled by the mediator, unless excused by the mediator.

A governmental entity satisfies the attendance requirement if its lead counsel is in attendance and has been delegated full settlement authority or has reasonable access to the person who has full settlement authority. In the event that the mediator determines it appropriate, the mediator shall have reasonable access to the person who has full settlement authority with appropriate accommodation of the person's competing public duties.

(h) Compensation of Mediators.

Unless otherwise stipulated by the parties and/or ordered by the court, each party will be responsible for a pro-rata share of the mediator's fees and expenses. Any dispute regarding the mediator's fees or expenses may be submitted to the Mediation Judge for disposition.

The court shall ensure that no referral to mediation results in imposition on any party of an unfair or unreasonable economic burden. A party who cannot afford to pay any fee charged under this rule may file a motion to be excused from paying or to pay at an appropriately reduced amount or rate.

(i) Immunity of Mediators.

All persons serving as mediators under this rule shall be deemed to be performing quasi-judicial functions and shall be entitled to all of the privileges, immunities, and protections that the applicable law accords to persons serving in such capacity.

(j) Confidentiality.

Except as otherwise provided by this rule and/or applicable law, all communications made in connection with any mediation under this rule shall be absolutely protected from disclosure for use in trial or for any other purpose, including a motion to enforce settlement.

Mediators and parties shall not communicate with the court about the substance of any position, offer, or other matter related to mediation without the consent of all parties, unless such disclosure is required to adjudicate a dispute over mediator fees, or to provide evidence in an attorney disciplinary proceeding, but only to the extent required to accomplish that purpose.

(k) Disclosure by Mediator.

Before commencing a mediation, an individual who is requested to serve as a mediator shall make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable person would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or counsel or foreseeable participant in the mediation. The mediator shall disclose any such fact known or learned by the mediator to the parties as soon as is practical.

(l) Objections for Cause.

Within seven (7) days after learning the identity of a mediator selected by the court or within seven (7) days of learning facts that form the basis of an objection, a party who objects to the selection of that mediator must file an objection that specifies the reason for the objection. Promptly after receiving an objection, the court shall determine whether the proposed mediator or another mediator will be selected.