(g) Ethics Enforcement Procedure
The purpose of the Code of Mediation Ethics, Appendix A, is to provide standards of ethical conduct to guide mediators who provide mediation services, to inform and protect consumers of mediation services, and to ensure the integrity of the mediation process. In order for mediation to be effective, there must be broad public confidence in the integrity of the process. Mediators have a responsibility not only to the parties and the legal system, but also to the continuing improvement of the process. They must observe high standards of ethical conduct. These provisions should be construed to advance these objectives.
Failure to comply with any provision in the Code of Ethics may be the basis for removal from the roster of mediators maintained by the State Court Administrator and for such other action as may be taken by the North Dakota Supreme Court or the State Bar Association of North Dakota, or other professional organizations. Violation of a provision of the Code should not itself give rise to a cause of action nor should it create any presumption that a legal duty has been breached. Nevertheless, since the rules do establish standards of conduct for mediators, a mediator's violation of a rule may be evidence of breach of the applicable standard of conduct.
This procedure applies to complaints against any individual mediator or mediation organization listed on the statewide mediation roster pursuant to this rule.
A mediator is subject to this complaint procedure when providing any mediation services. The complaint procedure applies whether the services are court ordered or not, and whether the services are or are not pursuant to North Dakota Rules of Court. The Alternative Dispute Resolution Review Board will consider the fullcontext of the alleged misconduct, including whether the mediator was subject to other applicable codes of ethics, or was representing a mediation organization at the time of the alleged misconduct.
The Alternative Dispute Resolution Review Board will consist of three (3) experienced mediators appointed by the Chief Justice of the North Dakota Supreme Court after consultation with the President of the State Bar Association of North Dakota. At least one member appointed must be a non-lawyer mediator. Each member will serve for a term not to exceed three years; however, at the time of the creation of the Board one member will serve one year before being eligible for reappointment, one member will serve two years before being eligible for reappointment and one member will serve three years before being eligible for reappointment. No member may serve more than two consecutive three year terms. The Chief Justice shall designate a Chair of the Board.
(A) A complaint must be in writing, signed by the complainant, and mailed or delivered to the Alternative Dispute Resolution Review Board. The complaint must identify the mediator and make a short and plain statement of the conduct forming the basis of the complaint.
(B) The Board shall review the complaint to determine whether the allegations(s), if true, constitute a violation of the Code of Ethics.
(C) If the allegations(s) of the complaint do not constitute a violation of the Code of Ethics, the complaint must be dismissed and the complainant and the mediator must be notified in writing.
(D) If the Board concludes that the allegations of the complaint, if true, constitute a violation of the Code of Ethics, the Board will undertake such review, investigation, and action it deems appropriate. In all such cases, the Board shall send to the mediator, by certified mail, a copy of the complaint, a list identifying the ethical rules that may have been violated, and a request for a written response to the allegations and to any specific questions posed by the Board. It may not be considered a violation of the Code of Ethics for the mediator to disclose notes, records, or recollections of the mediation process complained of as part of the complaint procedure. Confidentiality will be upheld by the Board and only the records and notes relevant to the complaint will be considered in order to protect the parties and the integrity of the mediation process. Except for good cause shown, if the mediator fails to respond to the complaint in writing within thirty (30) days, the allegations(s) shall will be considered admitted.
(E) The Board, at its discretion, may refer the complainant and mediator to mediation conducted by a neutral and qualified mediator to resolve the issues raised by the complainant. Mediation may proceed only if both the complainant and mediator consent. If the complaint is resolved through mediation, the Board shall dismiss the complaint, unless the resolution includes sanctions to be imposed by the Board. If no agreement is reached in mediation, the Board shall determine whether to proceed further.
(F) After review and investigation, the Board shall advise the complainant and mediator of the Board's action in writing by certified mail sent to their respective last known addresses. Upon request within 14 days from receipt of the Board's action on the complaint, the mediator and the complainant are entitled to a hearing before the Board to contest proposed sanctions or findings, and have the right to bring or defend against all charges, to be represented by an attorney, and to examine and cross-examine witnesses. The Board shall receive evidence that the Board considers necessary to understand and determine the dispute. Relevancy must be liberally construed in favor of admission. The Board shall make an electronic recording of the proceedings. The Board at its own initiative, or by request of the complainant or mediator, may issue subpoenas for the attendance of witnesses and the production of documents and other evidentiary matter. The Board's decision is final.
(A) The Board may impose sanctions, including but not limited to:
(i) issuing a private reprimand;
(ii) designating the corrective action necessary for the mediator to remain on the statewide roster;
(iii) notifying the appointing court and any professional licensing authority with which the mediator is affiliated of the complaint and its disposition;
(iv) publishing the mediator's name, a summary of the violation, and any sanctions imposed;
(v) removing the mediator from the roster of qualified mediators and setting conditions for reinstatement; and
(vi) assessing costs and expenses of proceedings against the mediator, including without limitation, the costs of investigations, service of process, witness fees, and a court reporter's services.
(B) Sanctions may only be imposed if supported by clear and convincing evidence. Conduct considered in previous or concurrent ethical complaints against the mediator is admissible to show a pattern of related conduct, the cumulative effect of which constitutes an ethical violation, and in consideration of appropriate sanctions.
(A) Unless and until sanctions are imposed, all files, records, and proceedings of the Board that relate to or arise out of any complaint shall be confidential, except:
(i) as between Board members and staff;
(ii) on request of the mediator, the file maintained by the Board, excluding its work product, must be provided to the mediator;
(iii) as otherwise required or permitted by rule or statute; and
(iv) to the extent that the mediator and complainant both waive confidentiality.
(B) If sanctions are imposed against any mediator under Section III A (2)-(5), the sanction must be of public record, and the Board file must remain confidential.
(C) Nothing in this rule may be construed to require the disclosure of the mental processes or communications of the Board or staff.
(7) Privilege; Immunity
(A) Privilege. A statement made in these proceedings is absolutely privileged and may not serve as a basis for liability in any civil lawsuit brought against the person who made the statement.
(B) Immunity. Board members and staff are immune from suit for any conduct in the course of their official duties.
Rule 8.9 was adopted, effective March 1, 2002; amended effective August 1, 2009.
A neutral is an individual or an organization offering an alternative dispute resolution process.
Arbitration is the process through which each party presents its case before a neutral third party who renders a binding or non-binding decision.
Mediation is an informal, non-adversarial process through which a neutral third party facilitates communication between the parties to promote settlement. Decision-making authority remains with the parties; the mediator has no authority to render a judgment on any issue of the dispute.
Subdivision (g) was added, effective August 1, 2009, to provide an enforcement procedure for the Code of Mediation Ethics attached to this rule as Appendix A.
SOURCES: Joint Procedure Committee Minutes of January 28-29, 1999, pages 7-12; May 6-7, 1999, pages 7-11.
REPEALED: N.D. Sup. Ct. Admin. R. 28, effective March 1, 2001.
CROSS-REFERENCE: N.D.R.Ct. 8.8 (Alternative Dispute Resolution).