Local Rule Rule 3.2: Alternative Dispute Resolution

Rule 3.2. Alternative Dispute Resolution Alternative dispute resolution (ADR) refers to a number of processes that can be used to resolve a dispute. Common forms of ADR include mediation, settlement conference, arbitration, early neutral evaluation and summary or mini trial. These processes are alternatives to having a judge or jury decide the dispute in a trial. While the procedures for mediation are set forth herein, the Court may adopt detailed procedures for other forms of ADR in the future.

Procedures for mediation:

(a) Mediation Defined. Mediation is 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.

(b) Referral to Mediation. Except as hereinafter provided, the Court may order any contested civil matter or selected issue to be referred to mediation.

(c) Mediation Conferences. Mediation conferences shall take place on a date, and at a time and location, agreed to by the parties and the mediator, unless otherwise ordered by the Court.

(d) Exclusions from Mediation. The following actions shall not be referred to mediation:

(1) Criminal actions;

(2) Forfeitures of seized property; or

(3) Habeas corpus and extraordinary writ.

(e) Grounds for Dispensing with Mediation. A party may move 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) the parties agree to an alternative method of dispute resolution; or

(4) other good cause is shown.

(f) Mediator Qualifications. Any person of legal age who, in the opinion of the parties, is deemed qualified by training or experience to mediate all or some of the issues in the particular case may act as a mediator.

(g) Court Assistance in Selecting a Mediator. If the parties cannot agree upon a mediator, they shall jointly so notify the Court, which shall work with the parties in a manner determined by the Court to identify a mediator.

(h) Mediator Compensation. The mediator shall be compensated by the parties.

(i) Mediators' Duties, Generally. Mediators have a duty to define and describe the process of mediation and its costs at the first mediation conference. The mediator may meet and consult with the parties or their counsel, individually or collectively, on any issue pertaining to the subject matter of the mediation.

(j) Mediator Disqualification. Mediators have a duty to disclose any fact that would be grounds for disqualification. Mediators have a duty to be impartial and to advise all parties of any circumstances suggesting possible bias, prejudice, or lack of impartiality. Persons selected as mediators shall be disqualified for bias, prejudice, or partiality, as provided by Title 28 U.S.C. Section 144, and shall disqualify themselves in any action in which they would be required under Title 28 U.S.C. Section 455 to disqualify themselves if they were a judge. Any party may move the Court to enter an order disqualifying a mediator for good cause.

(k) Mediator Immunity. Mediators acting pursuant to these rules shall have judicial immunity in the same manner and to the same extent as a judge.

(l) Required Appearances at Mediation. Each party involved in a mediation conference must attend each mediation conference with full authority to settle without further consultation. If a party to a mediation is a public entity, that party shall be deemed to attend a mediation conference if 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 attends.

The following persons must attend a mediation conference:

(1) Each party or its representative (other than appearing counsel) having full authority to settle without further consultation;

(2) A representative of any insurance carrier controlling defense and/or settlement of the case; and,

(3) Counsel, if any, to each party.

(m) Attendance Defined. Insurance representatives may attend a mediation conference via telephone or video-conference. All other individuals attending a mediation conference must be physically present unless all parties and the mediator have agreed, or the Court orders, that an individual(s), may appear by telephone or video-conference. 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.

(n) Confidentiality. All communications made during a mediation proceeding are presumptively confidential and privileged. Parties, counsel, and the mediator shall not disclose any such communications to anyone not participating in the mediation, including the Court, unless all parties consent to waive the privilege or as otherwise ordered by the Court.

(o) Discovery may continue throughout mediation. Such discovery may be delayed or deferred by order of the Court.

(p) Report to Court of Unsuccessful Mediation. If the parties do not reach 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.

(q) Agreement Following Successful Mediation. 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, court order, 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 recorded, and any transcript may be filed with the Court.