APPENDIX B. APPELLATE MEDIATION PROTOCOL
(1) Mission Statement. 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.
(A) To support improved family decision-making and to promote agreement and compromise v. further litigation and competition;
(B) To improve access to mediation by providing funding;
(C) To improve post litigation family problem-solving and communication capacities by reestablishing communication through mediation;
(D) To decrease litigation costs for litigants;
(E) To create incentives to pursue mediation including flexibility to negotiate critical issues without judicial intervention;
(F) To determine best practices for family mediation in North Dakota;
(G) To improve rural access to post litigation mediation services, as well as access by underprivileged and minority persons;
(H) 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;
(I) To reduce post-decree litigation and conflict in family cases; and
(J) To help the public, judiciary, and bar become more aware of the benefits and nature of the mediation process.
(3) 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.
(b) Program Management.
(1) 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.
(2) 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.
(c) Research and Evaluation. The program will include evaluation components.
(d) Mediation Process.
(1) Request for 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
(C) any case arising under the Uniform Probate Code or the Uniform Trust Code.
(2) Exemption from Mediation. On request of either party, a case that meets the Appellate Mediation Program criteria will be referred to mediation. A party may request an order from the Court exempting the case from the Appellate Mediation Program by filing a motion and an affidavit with the Clerk of the Supreme Court. The Court may exempt the case if:
(A) The issues raised are limited to a question of law; or
(B) Prior appellate mediation has been attempted and the issues are substantially similar; or
(C) Other good cause is shown.
The request must be simultaneously served on every party under N.D R.App. P. 25. The time for filing a notice of appeal under N.D.R. App. P. 4 is not affected by any request or assignment for mediation.
(3) Exclusion from Mediation. The Family Mediation Program Administrator may 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 may 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 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 the parties to 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 on 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. On receipt of a request for appellate mediation, the Family Mediation Program Administrator must 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 must forward a Notice of Mediation to counsel, any unrepresented party, and the Clerk of the Supreme Court. The Notice of Mediation must identify the mediator who has been assigned, and a deadline for completion of the mediation. The mediation must be completed within 45 days of the assignment of an appellate mediator.
(6) 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 must be extended to a date 15 days from the filing of the notice of appeal. 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.R.App.P. 26(b).
(7) Mediation Statement. On 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:
(A) a brief history of the litigation;
(B) a brief statement of facts;
(C) the history of any efforts to settle the case, including any offers or demands;
(D) a summary of the parties' legal positions;
(E) the present posture of the case, including any related litigation; and
(F) 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.
(e) Selection of Mediators.
(1) Eligibility. Any lawyer qualified as an appellate mediator under N.D.R.Ct. 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.
(2) 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.
(3) Conflicts of Interest & Bias. A mediator may not be removed unless the mediator and/or the parties' petition the Family Mediation Program Administrator based on 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.
(4) Confidentiality. Statements and comments made during mediation conferences and in related discussions, and any record of those statements, are confidential and may 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 may not be called as witnesses, and the information and records of the Family Mediation Program Administrator may not be disclosed to judges, staff, or employees of any court.
(f) Mediation Outcome. In appeals settled in whole or in part under Rule 5, a stipulation of the parties must be filed with the court, within five days of completion of the mediation, requesting the court to enter an appropriate order, which may include voluntary dismissal under Rule 43. In appeals not settled and terminated from mediation, briefing and oral 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.
(1) Decision. At the close of every mediation case, the mediator and parties must 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 five business days to reconsider the decisions made in mediation. If neither party files a written request to reconsider within five business days, the mediator must send a copy of the decision summary to the parties and their attorneys, along with the Mediation Case Closing Form. (Form A ).
(2) Evaluation. At the close of every mediation case, the mediator and the parties will complete the required evaluation forms and the mediator must 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.
(3) Case Closing/Notification: The mediator must notify the Family Mediation Program Administrator when a mediation case has concluded for any reason, and offer the following reasons:
(A) Agreement has been reached in whole or part; or
(B) 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.