To improve the lives of families who appear before the court by trying to resolve disputes
through mediation in order to minimize family conflict, encourage shared decision-making, and
support healthy relationships and communication among family members.
(1) To support improved family decision-making and to promote agreement and compromise vs. further litigation and competition; (2) To improve access to mediation by providing funding; (3) To improve post litigation family problem-solving and communication capacities
by reestablishing communication through mediation; (4) To decrease litigation costs for litigants; (5) To create incentives to pursue mediation including flexibility to negotiate critical
issues without judicial intervention; (6) To determine best practices for family mediation in North Dakota; (7) To improve rural access to post litigation mediation services, as well as access by
underprivileged and minority persons; (8) To work with the domestic violence services community in order to assess risk
and provide services where appropriate; and to ensure proper protections are put in place and
mediators are well-trained in signposts, risks, and exit planning strategies; (9) To reduce post-decree litigation and conflict in family cases; and (10) To help the public, judiciary, and bar become more aware of the benefits and nature
of the mediation process.
Policies & Procedures: This program is created under the auspices of the North Dakota Supreme Court. The Court has
appointed the Joint Committee on Alternative Dispute Resolution and the Subcommittee on
Appellate Mediation to collaborate on the program and provide guidance.
1) Program Management:
a. The Family Mediation Program Administrator, identified in North Dakota Supreme
Court Administrative Order 17, will manage and oversee the operation of the program
under the auspice of the North Dakota Supreme Court. b. The University of North Dakota Conflict Resolution Center will offer assistance to the
program as needed by providing expertise, professional assistance, training and
education. Compensation will be negotiated as required. 2) Research and Evaluation: The program will include evaluation components.
3) Implementation Model for Appellate Mediation: Any party contemplating appeal may
forward a request for mediation to the Family Mediation Program Administrator, no later than 60
days after the service of notice of entry of judgment or order in any final and appealable
judgments and orders in the following types of cases: a. divorce cases involving property or spousal support; b. any case involving parenting rights, residential responsibilities or support of minor
children; and b. any case involving the probate or administration of any estate.
The request must be simultaneously served on every party under N.D App. P 25. The time for
filing a notice of appeal under N.D App. P 4 is not affected by any request or assignment for
Exclusions: The Family Mediation Program Administrator shall not refer proceedings where a
current domestic violence protection order or other order for protection between the parties
currently exists. In these cases, the court shall not proceed with mediation except in unusual
cases where: a. Mediation is requested by the victim of the domestic violence or sexual abuse, and an
exception to the order of protection is made by the court; b. The mediation is provided by a mediator trained to address the needs and safety of victims
where domestic violence is at issue; c. The victim of domestic violence is provided the opportunity for separate meetings during the
mediation, and to mediate using separate rooms if they choose; d. The mediation takes place in a courthouse or other building where security measures are in
place; and e. The victim has an advocate or support person of their choice in the mediation.
4) Mediation and Orientation: The Appellate Mediation Program will automatically provide
up to 6 hours of combined pre-mediation orientations and mediation. Mediators will be
compensated at the rate of $170/hour with a cap of $1020 per case.The Appellate Mediation
Program requires that: The parties will individually attend a pre-mediation orientation and screening with a designated
mediator, and at least one joint mediation session. The program will provide up to 6 hours of
mediation without charge to the parties. Should the parties require additional sessions, they may
purchase mediation from the mediator. Parties may also apply to the Administrator for additional
mediation sessions and may apply for a fee waiver or sliding scale fee should they qualify based
upon economic factors. If the parties qualify for a fee reduction and have been approved for
additional mediation, any "gap" between $170/hour and their ability to pay will be paid to the
mediator under this program.
5) Court Procedures: Upon the receipt of a request for appellate mediation, the Family
Mediation Program Administrator shall determine whether a case meets the requirements for
eligibility and appropriateness for mediation. Once a case has been approved for appellate
mediation, the Family Mediation Program Administrator shall forward a Notice of Mediation to
counsel, any unrepresented party, and the Clerk of the Supreme Court. The Notice of Mediation
shall identify the mediator who has been assigned, and a deadline for completion of the
a. The mediation must be completed within 45 days of the assignment of an appellate mediator.
b. Ordering of Transcript and Filing of Briefs. In order to expedite the mediation process and
spare the parties as much initial expense as possible, the ordering of the transcript in respect to
cases eligible for and assigned for mediation, shall be extended to a date fifteen (15) days from
the filing of the notice of appeal.
c. The time for filing briefs is not automatically tolled pending mediation. In cases in which
mediation has been requested, any motions for enlargement of time for briefs must be filed with
the clerk of the Supreme Court under N.D App. P 26(b).
d. Upon request of the mediator, the parties should each supply to the mediator, at least 2 days
before the scheduled conference, a "Mediation Statement," no more than 4 pages in length. The
statement should include: (1) a brief history of the litigation, (2) the history of any efforts to
settle the case, including any offers or demands, (3) a summary of the parties' legal positions, (4)
the present posture of the case, including any related litigation, and (5) any proposals for
settlement. The Mediation Statement must not be filed in the office of the Supreme Court clerk.
Telephonic mediation may be used if all parties and the mediator agree.
6)Selection of Mediators: Any lawyer qualified as an appellate mediator under North Dakota
N.D App. P of Court 8.9 may apply to be added to the roster of appellate mediators and will be
approved by the Family Mediation Program Administrator. Mediators must carry malpractice
insurance that covers their mediation practice.
7) Mediation Assignment: Mediators will be assigned cases by the Family Mediation Program
Administrator and will manage cases assigned to them from orientation and screening through
conclusion of mediation.
8)Conflicts of Interest & Bias: A mediator may not be removed unless the mediator and/or the
parties' petition the Family Mediation Program Administrator based upon bias or conflicts of
interest. Parties and attorneys may not request a change of mediator unless they present clear
evidence of bias or conflict of interest.
9) Confidentiality: Statements and comments made during mediation conferences and in
related discussions, and any record of those statements, are confidential and shall not be
disclosed by anyone (including the Family Mediation Program Administrator, counsel, or the
parties; and their agents or employees) to anyone not participating in the appellate mediation
process. Mediators shall not be called as witnesses, and the information and records of the
Family Mediation Program Administrator shall not be disclosed to judges, staff, or employees of
10) Mediation Outcome: In appeals settled in whole or in part pursuant to this rule, a
stipulation of the parties shall be filed with the court, within 5 days of completion of the
mediation, requesting the court to enter an appropriate order, which may include voluntary
dismissal under e 43. In appeals not settled and terminated from mediation, briefing and oral
N.D App. P argument will proceed under the rules. In those cases settled by mediation prior to
the filing of a notice of appeal, the requesting party is responsible for filing any appropriate
document with the district court.
11) Closing: At the close of every mediation case, the mediator and parties shall create a
written decision summary for the parties that notes any and all agreements made and uses the
parties' own language. The parties will have 5 business days to reconsider the decisions made in
mediation. If neither party files a written request to reconsider within 5 business days, the
mediator shall send a copy of the decision summary to the parties and their attorneys, along with
the Mediation Case Closing Form. (Form A ). a. At the close of every mediation case, the mediator and the parties will complete the required
evaluation forms and the mediator shall submit those to the Administrator along with closing
form, and the mediator's invoice form. The Mediator is responsible for collecting fees from the
parties if appropriate.
12) Case Closing/Notification: The mediator shall notify the Family Mediation Program
Administrator when a mediation case has concluded for any reason, and offer the following
reasons: 1) Agreement has been reached in whole or part; or 2) The parties were unable to reach
agreement. If the parties and the mediator believe more mediation sessions would help to resolve
the case, the parties and the mediator can join in a request for additional sessions that will be
paid by the parties on a sliding fee basis directly to the mediator.