(a) Parties to civil suits are encouraged to participate in alternative dispute resolution
(“ADR”) before commencing a case or at an early stage of the case;under N.D.R.Civ.P. 16(a)(6),
and all parties in civil cases not excluded from application of this rule must discuss early ADR
participation and the appropriate timing of such effort.
(1) For the purposes of this rule, the following processes are included as forms of ADR:
(A) Mediation is a process in which a non-judicial neutral mediator facilitates communication between parties to assist the parties in reaching voluntary decisions related to their dispute.
(B) Non-binding Arbitration is a process of private adjudication in which parties present their cases to the arbitrator who issues an advisory decision. The parties agree in advance that the decision of the arbitrator is only advisory and will be used by the parties as a tool in attempting to resolve the dispute.
(C) Early Neutral Evaluation is a process where a content or process expert or attorney provides a neutral and unbiased evaluation of issues related to a dispute between parties. The evaluation might be about a specific question or issue or about how the case may fare at trial.
(D) Mini-Trial is an advisory process involving the trying of a dispute before a neutral adjudicator in a summary abbreviated fashion.
(E) Summary Jury Trial is an advisory process involving the trying of a dispute before a jury in a summary abbreviated fashion. The jury is often small in number and sometimes uses expert-jurors.
(2) For purposes of this rule, the following processes are not included as forms of ADR:
(A) Judicial Settlement Conference is a N.D.R.Civ.P. 16 process involving an informal discussion with a judge who is or is not assigned to the dispute. It can involve a wide array of negotiation and mediation techniques depending on the style of the judge. The purpose is to promote early settlement of cases.
(B) Binding Arbitration is a process of adjudication where the parties are required by law, contract or other agreement to submit their dispute to an arbitrator who decides the result of a dispute. The resulting decision by the arbitrator is binding upon the parties except under limited circumstances.
(b)Procedure. Within ninety (90) daysAafter the filing of an answer, a Rule 8.8 statement to the court must beeach party must within 60 days serve and filed a statement with the district court (in the form shown in appendix F) detailing the ADR participation that has occurred or will occur or if it will notis planned to occur. In a divorce, the statement may be incorporated into the joint informational statement under N.D.R.Ct. 8.3(a). The statement must certify that the parties have discussed ADR participation with each other and that the parties’ lawyers have discussed ADR with their clients., and, if an ADR process will occur, the time by which it will be completed.The statement must also set forth whether ADR will be court-sponsored under this rule or performed by
a private neutral.The party or parties who do not agree to participate must certify in the statement
that they have taken an ADR educational session. If a party or parties choosedoes not plan to
participate in ADR, the statement must contain the reason for not participating. If a party or parties do not agree to ADR, that decision must be reviewed by the district court, which must issue an order to require or not require mediation and explain the reason for its order and the time by which theprocess will be completed. Within 30 days of completion of an ADR process, the parties must report to the court on the outcome of the process. If the parties cannot agree on a neutral, the court may designate a person from the ADR neutral roster maintained by the State Court Administrator’s office. The statement may be incorporated into a joint informational statement under N.D.R.Ct. 8.3(a). Cases which are limited to review of an administrative decision on an existing record are excluded from this authorization, except upon specific designation by a judicial officer.If a party qualifies
for waiver of filing fees under Section 27-01-07, N.D.C.C., or if the court determines on other grounds that the party is unable to pay for ADR services, and free or low-cost ADR services are not
available, the court may not order that party to participate in ADR, and the court may not pay for ADR services.
(c) ADR educational sessions. The Joint ADR Committee shall make available to parties written and video materials which may be used by the attorneys and parties to fulfill any requirements under this rule for ADR educational sessions.
(d)(b)Confidentiality. The court-sponsored ADR processesareis confidential and not
open to the public. When persons agree to conduct and participate in ADR processes for the purpose of compromising, settling, or resolving a dispute, evidence of anything said or of any admission
made in the course of the ADR processes is inadmissible as evidence andDdisclosure of confidential
ADR communications is prohibited, except as authorized by the court and agreed to by the parties or as permitted under Sections 31-04-11 and 14-09.1-06, N.D.C.C.
(1) Statements made and documents produced in non-binding ADR processes which are not otherwise discoverable are not subject to discovery or other disclosure and are not admissible into evidence for any purpose at trial.
(2) The neutral conducting an ADR proceeding may not be called to testify in connection with any dispute relating to the ADR proceeding or its result except upon written agreement of the parties and the concurrence of the district court, or when otherwise required by law.
(3) Notes, records, work product, and recollections of the neutral are confidential, which means that they shall not be disclosed to the parties, the public, or anyone other than the neutral unless all parties and the neutral agree to such disclosure or such disclosure is required by law or other applicable professional codes. No record shall be made without the agreement of both parties, except for a memorandum of issues that are resolved.(c) The primary forms of ADR offered by the district court are mediative court-sponsored settlement conferences other than pretrial conferences under N.D.R.Civ.P. 16 and domestic relations mediation. Additionally, parties are encouraged to arrange and participate in ADR in the private market as an alternative to court-sponsored ADR.
(d) A sliding fee schedule based on participants’ assets and income will be established by administrative order and applied to court-sponsored mediation services in all cases involving domestic relations.
(e) The trial judge will not serve as the settlement judge under this rule. The trial judge will not be informed of any positions taken by parties during ADR and will only be advised whether the case settled.
(e)(f)Administration. Each district court will appointdesignate by order of appointment
a judicial officer or employee for its district to serve as program administrator to implement, oversee, and evaluate the district’s ADR program.
(g) Disqualification. A judicial officer or employee conducting an ADR proceeding may be disqualified for bias or prejudice or for a conflict of interest.
(1) Any party who believes a judicial officer or employee conducting an ADR proceeding has a conflict of interest must file a request for recusal at the earliest opportunity.
(2) Upon disqualification of a judicial officer or employee from conducting an ADR
proceeding, the presiding judge will assign another judicial officer or employee to conduct further ADR proceedings.
(h) Availability. Court-sponsored ADR will depend on available resources.
Rule 8.8 was adopted, effective March 1, 2001; and amended effective _________. Rule 8.8
is an adaptation of United States District Court, District of North Dakota, Local Rule 16.2. SOURCES: Joint Procedure Committee Minutes of January 28-29, 1999, pages 7-12; May 6-7,
1999, pages 7-11. STATUTES AFFECTED: REPEALED: N.D. Sup. Ct. Admin. R. 28, effective March 1, 2001. CROSS-REFERENCE: N.D.R.Ct. 8.9 (Roster of Alternative Dispute Resolution Neutrals).