Rule 90 Civil Mediation

(a) Definition. “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.

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

(1) Criminal actions;

(2) Appeals from rulings of administrative agencies;

(3) Forfeitures of seized property;

(4) Habeas corpus and extraordinary writs; or

(5) Other matters as may be specified by order of a judge.

(c) Referral for Mediation; Party Agreements. Except as provided in subpart (b) of this Rule, a judge may order any matter to be referred to mediation. The parties to any contested civil matter may file a written stipulation to mediate any issue between them at any time, and may agree upon a mediator to serve in that process. Such stipulation shall be incorporated into the order of referral.

(d) Procedure

(1) Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference shall be held within 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.

(3) Notice. Within 14 days after the order of referral, the parties shall notify the court of the agreed mediator and the date and place of mediation. If the parties cannot agree upon a mediator the plaintiff or petitioner shall so notify the court within such 14 days and the court shall appoint a certified or otherwise qualified mediator, as provided in subpart (i) of this Rule, selected by rotation or by such other procedures as may be adopted by administrative order of the court.

(4) Rescheduling. A mediator or the parties by agreement are authorized to change the date and time for the mediation conference, provided the conference takes place within the deadline for the mediation. Any continuance of the conference beyond that time must be approved by the judge.

(5) Location. The mediation conference shall take place at a site designated by the court or any other place stipulated to by the parties.

(6) Discovery. Discovery may continue throughout mediation. Such discovery may be delayed or deferred upon agreement of the parties or by order of the court.

(7) Communication with Parties. The mediator may meet and consult with the parties and 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 can consult with any party or their counsel only upon agreement of all parties. The mediator may 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, it being understood that this record shall not relate to the ex parte communications with the mediator.

(8) Disclosure Privilege. Each party involved in a court-ordered mediation conference has a privilege not to disclose, and to prevent any person present at the proceeding from disclosing communications made during such proceeding.

(9) Inadmissibility of Mediation Proceedings. 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.

(10) Completion Date. Mediation shall be completed within 45 days of the first mediation conference unless extended by order of the court or by stipulation of the parties, but in any event the process shall not exceed 90 calendar days.

(e) Duties of Mediator; Disqualification.

(1) Oath. Before commencing service, each mediator shall take an oath or affirmation similar to that administered to officials of the court.

(2) Orientation Session. 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 address 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 provision as provided for 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.

(3) Impartiality. The mediator has a duty to be impartial, and to advise all parties of circumstances bearing on his/her possible bias, prejudice or lack of impartiality.

(4) Disqualification.

(A) Mediators have a duty to disclose any fact bearing on their qualifications which would be grounds for disqualification.

(B) Any person selected as a mediator may be disqualified for bias, prejudice or impartiality as provided for by Title 4, Section 284 of the Virgin Islands Code, as may be amended, and shall disqualify himself in any action in which he would be required under 4 V.I.C. § 284 to disqualify himself if he were a judge. Any party may move the court to enter an order disqualifying a mediator for good cause.

(C) If the court rules that a mediator is disqualified from hearing a case, 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 of mediation shall be tolled during any period in which a motion to disqualify is pending.

(f) Sanctions for Failure of Party to Appear; Authority Required. 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 shall impose sanctions, including an award of mediator and attorney’s fees and other costs against the party failing to appear or found not to have mediated in good faith. 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.

(g) Compensation of the Mediator. The mediator shall be compensated by the parties. The presiding judge may determine the reasonableness of the fees charged by the mediator. In the absence of a written agreement providing for the mediator's compensation, the mediator shall be compensated at the hourly rate set by the presiding judge. Each party shall pay one-half or such other proportionate share of the total charges of the mediator, unless the court determines that one party has not mediated in good faith in which event the total fees may be assessed against that party by the court. Mediators are expected to render pro bono service by charging reduced fees or no fees to an indigent party, where such indigency is established by affidavit filed in the court.

(h) Disposition.

(1) Absence of Agreement. 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 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) Agreement Reached. 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 by the parties' consent. If the agreement is not filed, a joint stipulation of dismissal or consent judgment 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.

(3) Enforcement of Agreement; Sanctions. In the event of any breach or failure to perform under the agreement, the court upon motion may impose sanctions, including costs, attorney’s fees, or other appropriate remedies including entry of judgment on the agreement.

(i) Certification and Qualification of Mediators.

(1) Certified Mediators. The presiding judge may certify as a mediator any person who:

(A) is at least 21 years of age;

(B) is a citizen of the United States of America or a legal immigrant;

(C) has completed a minimum of 20 hours in a training program approved by the court; or (D has been a person certified as a mediator by the American Arbitration Association, or any other organization approved by the court, and

(E) is a member in good standing of the Virgin Islands Bar with at least 5 years of V.I. practice, and an active member of the V.I. Bar within 1 year of application for certification; or

(F) is the holder of a Master's degree in Social Work, Psychology or related field of Conflict Resolution and a member in good standing in his or her professional field with at least 5 years of practice in the V.I.

(G) Notwithstanding the foregoing procedures, the presiding judge may certify as a Superior court mediator any former judge of a federal, state or Superior court.

(2) Qualified Mediators. The presiding judge may designate as a qualified mediator any person who:

(A) is at least 21 years of age;

(B) is a graduate of an accredited high school or holder of a high school equivalency diploma;

(C) is a citizen of the United States of America or a legal immigrant; (D has at least 8 years of specific and active experience in his/her field of endeavor;

(E) is of good moral character as shown by at least 2 character references who are not related by blood or marriage;

(F) is not an abuser of alcoholic stimulants, narcotic drugs, or any controlled substances;

(G) is not suffering from any mental or emotional impairment and does not have a history thereof.

(H) Any person who meets the foregoing requirements may be eligible to serve as a Qualified Mediator of the Superior court. A Qualified Mediator may become a Certified Mediator upon compliance with the requirement for certification.

(3) List. A list of all persons certified as mediators shall be maintained by the court.