RULE 5. POST-JUDGMENT MEDIATION
1 (a) Purpose.
2 (1) The purpose of post-judgment mediation is to improve the lives of
3 families who appear before the courts by trying to resolve disputes through
4 mediation in order to minimize family conflict, encourage shared decision-making,
5 and support healthy relationships and communication among family members.
6 (2) The objectives of post-judgment mediation are to:
7 (A) support improved family decision-making and to promote agreement
8 and compromise instead of further litigation and competition;
9 (B) improve access to mediation by providing funding;
10 (C) improve post-litigation family problem-solving and communication
11 capacities by reestablishing communication through mediation;
12 (D) decrease litigation costs for litigants;
13 (E) create incentives to pursue mediation including flexibility to negotiate
14 critical issues without judicial intervention;
15 (F) determine best practices for family mediation in North Dakota;
16 (G) improve rural access to post-litigation mediation services, as well as
17 access by underprivileged and minority persons;
18 (H) work with the domestic violence services community in order to assess
19 risk and provide services where appropriate; and to ensure proper protections are
20 put in place and mediators are well-trained in signposts, risks, and exit planning
22 (I) reduce post-judgment litigation and conflict in family cases; and (J) help
23 the public, judiciary, and bar become more aware of the benefits and nature of the
24 mediation process.
25 (b) Program Management. The family mediation program administrator will
26 manage and oversee the operation of the program under the supervision of the
27 Supreme Court.
28 (c) Research and Evaluation. The program will include evaluation
30 (d) Mediation Process.
31 (1) Request for Mediation. Any party contemplating an appeal may forward
32 a request for post-judgment mediation to the program administrator no later than
33 60 days after the service of notice of entry of judgment or order, or seven days
34 after service of the notice of appeal, in any eligible case. The request must be
35 simultaneously served on every party under N.D. R. App. P. 25. The time for filing
36 a notice of appeal under N.D. R. App. P. 4 is not affected by any request or
37 assignment for mediation.
38 (2) Eligible Cases. Only
final and appealable judgments and orders that are
39 final and appealable to the supreme court in the following types of cases are
40 eligible for participation in
appellate post-judgment mediation:
41 (A) divorce cases involving property or spousal support;
42 (B) any case involving parenting rights, except for termination of parental
43 rights cases;
44 (C) any case involving residential responsibilities or support of minor
46 (D) any case involving grandparent visitation; and
47 (E) any case under the Uniform Probate Code or the Uniform Trust Code.
48 (3) Exemption from Mediation. Any party may request referral of an
49 eligible case to post-judgment mediation. Referral must be granted unless a party
50 requests an order from the court exempting the case from post-judgment mediation
51 by filing a motion and an affidavit with the clerk of the supreme court within seven
52 days of service of the mediation request. The court may exempt the case if:
53 (A) the issues raised are limited to a question of law; or
54 (B) prior post-judgment mediation has been attempted and the issues are
55 substantially similar; or
56 (C) other good cause is shown.
57 (4) Exclusion from Mediation. The program administrator may not refer
58 proceedings where a current domestic violence protection order or other order for
59 protection between the parties exists. In these cases, the court may not proceed
60 with mediation except in unusual cases where:
61 (A) mediation is requested by the victim of the domestic violence or sexual
62 abuse, and an exception to the order of protection is made by the court;
63 (B) the mediation is provided by a mediator trained to address the needs and
64 safety of victims where domestic violence is at issue;
65 (C) the victim of domestic violence is provided the opportunity for separate
66 meetings during the mediation, and to mediate using separate rooms;
67 (D) the mediation takes place in a courthouse or other building where
68 security measures are in place; and
69 (E) the victim has an attorney or other advocate or support person of their
70 choice in the mediation.
71 The Rule 5 (d)(4) exclusion and exceptions are intended to comply with the
72 N.D.C.C. §§ 14-09.1-02 standards for family mediation.
73 (5) Screening and Assignment of Mediator. On receipt of a request for post-
74 judgment mediation, the program administrator must determine whether a case
75 meets the requirements for eligibility and appropriateness for mediation. Once a
76 case has been approved for post-judgment mediation, the program administrator
77 must assign a mediator eligible under Rule 5(e). The program administrator must
78 send a notice of mediation to counsel, any unrepresented party, and the clerk of the
79 supreme court. The notice of mediation must identify the mediator who has been
80 assigned, and a deadline for completion of the mediation. The mediation must be
81 completed within 45 days of the assignment of a post-judgment mediator.
82 (6) Ordering of Transcript and Filing of Briefs. To expedite the mediation
83 process and spare the parties as much initial expense as possible, the ordering of
84 the transcript in cases assigned for mediation is extended to 21 days after the filing
85 of the notice of appeal. The time for filing briefs is not automatically tolled
86 pending mediation. In cases in which mediation has been requested, any motions
87 for enlargement of time for briefs must be filed with the clerk of the supreme court
88 under Rule 26(b).
89 (7) Mediation Orientation. The post-judgment mediation program will
90 provide up to six hours of combined pre-mediation orientations and mediation.
91 Mediators will be compensated at a rate set annually by the state court
92 administrator. The post-judgment mediation program requires the parties to
93 individually attend a pre-mediation orientation and screening with a designated
94 mediator, and at least one joint mediation session. The program will provide up to
95 six hours of mediation without charge to the parties. Should the parties require
96 additional sessions, they may purchase mediation from the mediator. Parties may
97 also apply to the program administrator for additional mediation sessions and may
98 apply for a fee waiver or sliding scale fee should they qualify based on economic
99 factors. The program administrator will determine whether a party is eligible for a
100 fee waiver or fee reduction based on party income according to a schedule adopted
101 by the Supreme Court. If the parties qualify for a fee reduction and have been
102 approved for additional mediation, any "gap" between the set rate and their ability
103 to pay will be paid to the mediator by the court under this program.
104 (8) Mediation Statement. On request of the mediator, the parties should
105 each supply to the mediator, at least two days before the scheduled conference, a
106 mediation statement no more than four pages in length. The statement should
108 (A) a brief history of the litigation;
109 (B) a brief statement of facts;
110 (C) the history of any efforts to settle the case, including any offers or
112 (D) a summary of the parties' legal positions;
113 (E) the present posture of the case, including any related litigation; and
114 (F) any proposals for settlement.
115 The mediation statement may not be filed in the office of the clerk of the
116 supreme court. Mediation by telephone or other electronic means may be used if
117 all parties and the mediator agree.
118 (e) Selection of Mediators.
119 (1) Eligibility. Any lawyer qualified as a post-judgment mediator under
120 N.D.R.Ct. 8.9 may apply to be added to the roster of post-judgment mediators and
121 will be approved by the program administrator. Mediators must carry malpractice
122 insurance that covers their mediation practice.
123 (2) Mediation Assignment. Mediators will be assigned cases by the program
124 administrator and will manage cases assigned to them from orientation and
125 screening through conclusion of mediation.
126 (3) Conflicts of Interest and Bias. A mediator may not be removed unless
127 the mediator and/or the parties' petition the program administrator based on bias or
128 conflicts of interest. Parties and attorneys may not request a change of mediator
129 unless they present clear evidence of bias or conflict of interest.
130 (f) Mediation Outcome. Within seven days after completion of the
131 mediation decision summary in appeals settled in whole or in part under Rule 5,
132 the parties must file a copy of the decision summary and a request for the Supreme
133 Court to take appropriate action, such as dismissal of the appeal under Rule 43 or
134 remand to the district court. If a matter is remanded, the parties must file the
135 appropriate documents with the district court to obtain an amended judgment,
136 which must incorporate all terms of the decision summary. On entry of an
137 amended judgment, the parties must request the Supreme Court to enter an
138 appropriate order. In appeals not settled and terminated from mediation, briefing
139 and oral argument will proceed under the rules. In cases settled by post-judgment
140 mediation prior to the filing of a notice of appeal, the requesting party is
141 responsible for obtaining an amended judgment incorporating all terms of the
142 decision summary from the district court.
143 (g) Closing.
144 (1) Mediation Decision Summary. At the close of every mediation case, the
145 mediator and parties must create a written decision summary for the parties that
146 notes any and all agreements made and uses the parties' own language. The parties
147 will have seven days to reconsider the decisions made in mediation. If neither party
148 files a written request to reconsider within seven days, the mediator must
149 immediately send a copy of the decision summary to the parties and their attorneys,
150 along with the Mediation Case Closing Form. (N.D.R.Ct. Appendix I, Form G).
151 (2) Evaluation. At the close of every mediation case, the mediator and the
152 parties must complete the required evaluation forms and the mediator must submit
153 those to the program administrator along with closing form, and the mediator's
154 invoice form. The mediator is responsible for collecting fees from the parties if
156 (3) Case Closing/Notification. The mediator must notify program
157 administrator when a mediation case has concluded for any reason, and offer the
158 following reasons:
159 (A) agreement has been reached in whole or part; or
160 (B) the parties were unable to reach agreement.
161 (h) Confidentiality. Statements and comments made during mediation
162 conferences and in related discussions, and any record of those statements, are
163 confidential and may not be disclosed by anyone (including the program
164 administrator, counsel, or the parties; and their agents or employees) to anyone not
165 participating in the post-judgment mediation process. Mediators may not be called
166 as witnesses, and the information and records of the program administrator may
167 not be disclosed to judges, staff, or employees of any court.
168 EXPLANATORY NOTE
169 Rule 5 was adopted, effective January 1, 2014; amended effective Oct 1,
171 Rule 5 was amended, effective Oct 1, 2014, to replace "supreme court
172 clerk" with "clerk of the supreme court" and "paper" with "document."
173 Paragraph (d)(2) was amended, effective __________________, to clarify
174 that supreme court judgments are not eligible for post-judgment mediation.
175 Sources: Joint Procedure Committee Minutes of September 24-25, 2016,
176 page 24; January 31-February 1, 2013, pages 5-10; Joint Alternative Dispute
177 Resolution Committee Minutes of June 25, 2012; October 25, 2011; September 7,
178 2011; June 29, 2011; June 10, 2011; December 9, 2010.
179 STATUTES AFFECTED:
180 CONSIDERED: N.D.C.C. §§ 14-09.1-02.
181 CROSS REFERENCE: N.D.R.App.P. 26 (Computing and Extending
182 Time), N.D.R.App.P. 43 (Substitution of Parties); N.D.R.Ct. 8.1 (Family
183 Mediation Program), N.D.R.Ct. 8.9 (Roster of Alternative Dispute Resolution