Local Rule Rule 83J: Court-annexed Mediation

RULE 83J COURT-ANNEXED MEDIATION

(a) In General.

Mediation is a non-binding process by which parties and counsel meet with a neutral mediator trained to assist them in settling disputes. Although mediators have no power to render a decision or dictate a settlement, mediation is generally recognized as improving communication between disputing parties by assisting them to articulate their interests. Mediators also assist in identifying areas of agreement in order to generate options for a mutually agreeable resolution.

(b) Eligible Cases; Selection for Mediation.

All civil cases arising under the jurisdiction of this court are eligible for mediation. A case may be selected for mediation:

(1) By the court at its discretion;

(2) By the court on the motion of one of the parties; or

(3) By the stipulation of all parties.

(c) Mediators.

(1) Qualifications. In order to be eligible to serve as a mediator in this district, an applicant must:

(A) have been a member in good standing of the bar of this court for a period of at least five (5) years;

(B) have at least five (5) years of experience in the resolution of legal disputes (as an arbitrator, judge, mediator, or similar) or have received a mediator certificate after completing at least 40 hours of training; and,

(C) demonstrated professionalism, integrity, and sound judgment throughout his or her career, as determined by the committee of judges designated pursuant to subsection (c)(3) of this rule.

(2) List. The court will establish a list of mediators. The list will be comprised of judges, retired judges, and attorneys who, based on their training or experience, are deemed to possess the qualities necessary to perform effectively as mediators.

(3) Applications. The clerk will solicit and receive applications from individuals wishing to serve as mediators, and the chief judge will designate a committee of judges to evaluate each candidate and determine which applicants may be included on the list. The applications shall be submitted in the form approved by the court and available at the clerk's office ("Application for Inclusion in List of Mediators"), or at the court's web site (www.prd.uscourts.gov). Mediators will be named for a term of two years, subject to renewal.

(4) Selection of a Mediator.

(A) By the Parties. The court will promptly notify the parties in writing when a case is referred to mediation. Once notice has been given, the parties will first be given an opportunity to select a mediator from the list maintained by the court. The parties may select a mediator not on the court approved list, provided the mediator signs a written agreement to be bound by these local rules. The parties must, within fourteen (14) days of the date of the court's notice of referral to mediation, notify the court of the name of the person selected by the parties to serve as mediator, and file a written agreement with the selected mediator.

(B) By the Court. If the parties fail to agree to a mediator within the fourteen (14) day time period, or fail to notify the court within the fourteen (14) day time period, the court will select a mediator from the approved list maintained by the court.

(C) Potential Conflict of Interest. If the court selects the mediator, it must identify all interested parties to the mediation and determine whether a mediator selected by the court has any potential conflict of interest.

(D) Acceptance of Designation. Upon selection, a mediator shall acknowledge his designation in writing by filing an acknowledgment and declaration in the form approved by the court and available at the clerk's office, or at the court's web site (www.prd.uscourts.gov).

(5) Compensation. A mediator will be compensated at a reasonable rate, taking into consideration the qualifications of the mediator and the complexities of the issues in the case. The mediator's fee will be borne equally by the parties unless directed otherwise by the court. The rate of compensation shall be agreed to in writing by the parties during the fourteen (14) day period parties are given to select a mediator as prescribed in subparagraph (4)(A). Should the parties fail to come to an agreement the court shall set the level of fees.

(6) Oath. Each individual certified as a mediator of the court shall take the oath or affirmation prescribed by 28 U.S.C. § 453.

(7) Disqualification. No mediator shall serve in any matter in violation of the standards set forth in 28 U.S.C. § 455. If a mediator is concerned that a circumstance covered by section 455(a) might exist, the mediator shall promptly disclose that circumstance in writing to all counsel to the dispute.

(A) A party who believes that the mediator has a conflict of interest shall bring this concern to the attention of the court in writing, within fourteen (14) days of learning of the potential conflict, or the objection shall be deemed waived.

(B) A party who believes that the mediator has engaged in impermissible misconduct shall bring this concern to the attention of the court in writing, within fourteen (14) days of learning of the alleged misconduct, or the objection shall be deemed waived.

(d) Mediation Order.

Once a mediator has been selected, the court shall enter a mediation order. The order shall:

(1) Appoint a mediator;

(2) State the rate of compensation of the appointed mediator; and,

(3) Establish a deadline for when mediation must be completed. The deadline shall not exceed six (6) months from the date of the order. Once mediation has commenced, the parties may request the court for an extension of time beyond the deadline in order to complete the mediation process.

A party may object for good cause to court ordered mediation by filing a written request for reconsideration, within fourteen (14) days after the court has issued a mediation order. Mediation processes will be stayed pending a decision on the request for reconsideration unless otherwise ordered by the court.

(e) Mediation Process.

(1) Scheduling of Mediation Sessions. The mediator shall contact all attorneys to fix the date and place of the first mediation session. The first session must be held within thirty (30) days from the date the mediation order is entered. The mediation shall be held at the office of the mediator or at any other location mutually agreed to by the parties. At the completion of the first session, the mediator may schedule additional mediation sessions at a time and place agreed to by the parties.

(2) Written Submissions to the Mediator. At least seven (7) days before the first mediation session, the parties must submit to the mediator:

(A) Copies of all relevant pleadings and motions; and

(B) A Mediation Statement not to exceed ten (10) double-spaced pages (not including exhibits), outlining the key facts and legal issues in the case. The statement will also include each party's position regarding settlement. Mediation statements are not briefs and are not to be filed with the court. Only the mediator shall have access to the statements.

(3) Attendance at Mediation Sessions. Once the mediation order has been entered, all parties and their respective counsel must attend all mediation sessions and engage in a good faith effort to resolve the dispute as prescribed by subparagraph (f) of this rule. If a party is a corporation, governmental institution or a minor, a representative of that party must attend with binding authority to settle the matter.

(4) Separate Caucuses. The mediator may hold separate, private caucuses with any party or counsel.

(5) Expert Advice. The mediator may obtain expert advice concerning technical aspects of a dispute, provided all parties agree and assume the expenses of obtaining that assistance.

(6) Conclusion of Mediation. Mediation shall conclude when:

(A) A settlement is reached. If the parties reach an agreement, the mediator will prepare a written summary reflecting the agreement. The parties shall sign the agreement and file it with the court;

(B) The mediator concludes and informs the court that further efforts would not be useful; or

(C) One of the parties requests the court that mediation be terminated. The court shall grant such a request upon a showing by the requesting party that it has participated in the mediation in good faith and that further sessions are not likely to result in settlement.

(7) At the court's discretion, proceedings may be stayed pending the conclusion of the mediation process.

(f) Good-Faith Participation.

In all cases designated by the court for mediation, good faith participation shall be mandatory for all parties. The failure of any party to participate in good faith shall result in sanctions. In determining good faith participation, the court will rely heavily on the recommendation of the mediator.

(g) Confidentiality.

All mediation proceedings conducted pursuant to this rule shall remain confidential. All written and oral communications made by the parties and the mediator in connection with, or during, any mediation session are confidential and may not be disclosed for any purpose unrelated to the mediation process. The mediator shall not be called by any party as a witness in any court proceeding related to the subject matter of the mediation unless related to alleged misconduct of the mediator or with respect to the good faith requirement contained in subparagraph (f) of this rule. No papers generated or produced by the mediation process will be included in court files, nor shall the judge or magistrate judge assigned to the case have access to them. Information about what transpires during mediation sessions will not at any time be made known to the court, except to the extent required to resolve issues of noncompliance with the mediation procedures. Nothing in this section shall be construed to prohibit parties from entering into a written agreement resolving some or all of the case or entering and filing with the court any procedural or factual stipulations based on suggestions made or agreements reached as a result of the mediation process.