Local Rule 83.8: Assisted Mediation Program

83.8 Assisted Mediation Program

(a) Purpose. The purpose of this Rule is to provide a supplementary procedure to the Court's existing alternative dispute resolution procedures that is specifically designed to assist civilian pro se litigants. This Rule provides for the possibility of an earlier resolution of civil disputes resulting in savings of time and cost to litigants and the Court without sacrificing the quality of justice rendered or the right of litigants to a full trial on all issues not resolved through assisted mediation.

(b) Definitions. Mediation is a process by which an impartial person, the mediator, facilitates communication between disputing parties to promote understanding, reconciliation and settlement. The mediator is an advocate for settlement and uses the mediation process to help the parties fully explore any potential area of agreement. The mediator does not serve as a judge or arbitrator and has no authority to render any decision on any disputed issue or to force a settlement. The parties themselves are responsible for negotiating any resolution(s) to their dispute.

(c) Scope. The Court may assign specially trained pro bono Special Mediation Counsel to assist pro se civilian litigants with preparing for and participating in assisted mediation. The Assisted Mediation Program is open to civilian pro se parties to actions in the Northern District of New York. The assigned district judge or magistrate judge determines if the case would benefit from assisted mediation and would also benefit from the assignment of Special Mediation Counsel to assist the pro se party with the mediation process.

Appointment of Special Mediation Counsel is in no way guaranteed, even if the action is referred to the court-annexed assisted mediation program. Appointment is at the sole discretion of the presiding judge.

(d) Procedure. The procedure and limits of Assisted Mediation are governed by this Rule, including the filing requirements preceding and following the assisted mediation session.

1. If the court determines that referral to the Assisted Mediation Program is appropriate, the Court shall enter an order of reference to the Assisted Mediation Program.

2. Within ten (10) days of the entry of the order of reference, the pro se party shall complete and sign the Assisted Mediation Program declaration form provided by the Clerk's Office.

3. After receipt of the completed declaration, the Court shall issue an order appointing Special Mediation Counsel, appointing a mediator, and setting a date or time frame in which the assisted mediation session should be held. The court may appoint a member of the court's mediation panel, the assigned magistrate judge, or another magistrate judge as the mediator.

4. If the assisted mediation session does not result in settlement, at the conclusion of mediation procedures, the Court shall issue an order relieving the Special Mediation Counsel of further representation duties and termination of the attorney-client relationship.

(e) Duties of Special Mediation Counsel. Within five days of the filing of the order of reference, the Special Mediation Counsel shall contact the pro se party to help prepare for the assisted mediation session. On the agreed upon or set date, the Special Mediation Counsel shall attend the assisted mediation session and provide assistance to the pro se party. Thereafter, the Special Mediation Counsel shall help the pro se party complete any follow-up to the assisted mediation session, including the processing of a settlement agreement when necessary.

1. Memorandum for Assisted Mediation. At least two days prior to the mediation session, each party shall provide to the mediator a "memorandum for assisted mediation." This memorandum shall a. State the name and role of each person expected to attend; b. Identify each person with full settlement authority; c. Include a concise summary of the party's claims or defenses; d. Discuss liability and damages; and e. State the relief sought by such party The memorandum for assisted mediation shall not exceed five pages, and the parties shall not file these documents in the case or otherwise make them part of the court file.

(f) Service to the Bar and Court Provided by Special Mediation Counsel. Special Mediation Counsel performs duties as a pro bono service to the Court, litigants, and the bar. Costs Special Mediation Counsel incurs during the course of representation of the pro se party, including costs associated with obtaining copies of materials filed prior to appointment and in attending mediation sessions, are recoverable under L.R. 83.3(g).

(g) No person shall serve as a mediator in an action in which any of the circumstances specified in 28 U.S.C. § 455 exists, or may in good faith be believed to exist. Additionally, any mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144. Furthermore, the mediator has a continuing obligation to disclose any information that may cause a party or the court to believe, in good faith, that such mediator should be disqualified.

(h) Assisted mediation sessions under this Rule may be held in any available court space or in any other suitable location agreeable to the mediator and the parties. Consideration shall be given to the convenience of the parties and to the cost and time of travel involved.

(i) There shall be no continuance of an assisted mediation session beyond the time set in the referral order except by order of the Court upon a showing of good cause. If any rescheduling occurs within the prescribed time, the parties or the mediator must notify the ADR clerk and select the location of the rescheduled hearing.

(j) The parties shall promptly report any settlement that occurs prior to the scheduled assisted mediation to the mediator and to the ADR clerk.

(k) Attendance Required. The attorneys who are expected to try the case for any represented parties shall appear and shall be accompanied by an individual with authority to settle the lawsuit. Those latter individuals shall be the parties (if the parties are natural persons) or representatives of parties that are not natural persons. These latter individuals may not be counsel (except in-house counsel). Attorneys for the parties shall notify other interested parties such as insurers or indemnitors who shall attend and are subject to the provisions of this Rule. Only the assigned judge may excuse attendance of any attorney, party, or party's representative. Anyone who wants to be excused from attending the assisted mediation must make such request in writing to the presiding judge at least forty-eight (48) hours in advance of the assisted mediation session.

(l) Good Faith Participation in the Process. Parties and counsel shall participate in good faith, without any time constraints, and put forth their best efforts toward settlement. Typically, the mediator will meet initially with all parties to the dispute and their counsel in a joint session and thereafter separately with each party and their representative. This process permits the mediator and the parties to explore the needs and interests underlying their respective positions, generate and evaluate alternative settlement proposals or potential solutions, and consider interests that may be outside the scope of the stated controversy including matters that the Court may not address. The parties will participate in crafting a resolution of the dispute.

(m) Confidentiality. Assisted mediation is regarded as a settlement procedure and is confidential and private. No participant may disclose, without consent of the other parties, any confidential information acquired during assisted mediation. There shall be no stenographic or electronic record, e.g., audio or video, of the assisted mediation process.

1. All written and oral communications made in connection with or during the assisted mediation session are confidential.

2. No communication made in connection with or during any assisted mediation session may be disclosed or used for any purpose in any pending or future proceeding in the U.S. District Court for the Northern District of New York.

3. Privileged and confidential status is afforded all communications made in connection with the assisted mediation session, including matters emanating from parties and counsel as well as mediators' comments, assessments, and recommendations concerning case development, discovery, and motions. Except for communication between the assigned judge and the mediator regarding noncompliance with program procedures (as set forth in this Rule), there will be no communications between the Court and the mediator regarding a case that has been designated for assisted mediation. The parties will be asked to sign an agreement of confidentiality at the beginning of the assisted mediation session.

4. Parties, counsel and mediators may respond to inquiries from authorized court staff which are made for the purpose of program evaluation. Such responses will be kept in strict confidence.

5. The mediator may not be required to testify in any proceeding relating to or arising out of the matter in dispute. Nor may the mediator be subject to process requiring disclosure of information or data relating to or arising out of the matter in dispute.

6. Immunity. Mediators, as well as the Mediation Administrator (ADR clerk), shall be immune from claims arising out of acts or omissions incident to service as a court appointee in the mediation program. See, e.g., Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994).

7. Default. Subject to the mediator's approval, the assisted mediation session may proceed in the absence of a party, who, after due notice, fails to be present. The Court may impose sanctions on any party who, absent good cause shown, fails to attend or participate in the assisted mediation session in good faith in accordance with this Rule.

8. Conclusion of the Mediation Session. The assisted mediation shall be concluded a. By the parties' resolution and settlement of the dispute; b. By adjournment for future assisted mediation by agreement of the parties and the mediator; or c. Upon the mediator's declaration of impasse that future efforts to resolve the dispute are no longer worthwhile.

Unless the Court authorizes otherwise, assisted mediation sessions shall be concluded at least fourteen (14) days prior to any final pretrial conference that the Court has scheduled.

If the assisted mediation is adjourned by agreement for further mediation, the additional session shall be concluded within the time the Court orders.

(n) Immediately upon conclusion of the assisted mediation, the mediator shall file a mediation report with the ADR clerk, indicating only whether the case settled, settled in part, or did not settle. This requirement does not apply if a magistrate judge serves as the mediator.

(o) In the event the parties reach an agreement to settle the case, the representatives for each party shall promptly notify the ADR clerk and promptly prepare and file the appropriate stipulation of dismissal.

(p) If the parties reach a partial agreement to narrow, withdraw or settle some but not all claims, they shall file a stipulation concisely setting forth the resolved claims with the ADR clerk within five (5) days of the assisted mediation. The stipulation shall bind the parties.

(q) If the assisted mediation session does not conclude in settlement of all the issues in the case, the case will proceed toward trial pursuant to the scheduling orders entered in the case.