RULE 8.8 ALTERNATIVE DISPUTE RESOLUTION
(a) Scope. 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; and all parties in civil cases 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:
Mediation mediation is a process
in which a non-judicial nonjudicial neutral mediator
facilitates communication between parties to assist the parties in reaching voluntary decisions
related to their dispute; .
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; .
Early early neutral evaluation is a
process where during which 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; .
Mini-trial mini-trial is an
advisory process involving the trying of a dispute before a
neutral adjudicator in a summary abbreviated fashion;
Summary 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 in which 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
15 14 days or
such other time the court may direct prior to the initial
pretrial conference held under N.D.R.Civ.P. 16, a Rule 8.8 statement to the court must be
filed 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 not 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 party or parties who do not agree to
participate must certify in the statement that they have discussed ADR with counsel or, if not
represented, that the party is aware of ADR. If a party or parties choose not to participate in
ADR, the statement must contain the reason for not participating. If the parties agree to an
ADR process but cannot agree on a neutral, the court may designate a person from the ADR
neutral roster maintained by the State Court Administrator's office.
(c) Education. The Joint ADR Committee
must 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 discussion or information.
(d) Confidentiality. The ADR processes are 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 and disclosure of confidential ADR
communications is prohibited, except as authorized by the court and agreed to by the parties
or as permitted under
Sections N.D.C.C. §§
31-04-11 and 14-09.1-06. , N.D.C.C.
(1) Statements made and documents produced in
non-binding nonbinding 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
means that they
shall will 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
will be made without
the agreement of both parties, except for a memorandum of issues that are
(e) Administration. Each district court will appoint a judicial officer or employee for its district to serve as program administrator to implement, oversee, and evaluate the district's ADR program.
Rule 8.8 was adopted, effective March 1, 2001; and amended effective October 1, 2006; March 1, 2011.
Rule 8.8 is an adaptation of United States District Court, District of North Dakota, Local Rule 16.2.
Subdivision (b) was amended, effective March 1, 2011, to change the time to file a Rule 8.8 statement from 15 to 14 days before the initial pretrial conference.
Sources: Joint Procedure Committee Minutes of April 29-30, 2010, pages 26-27; January 28-29, 1999, pages 7-12; May 6-7, 1999, pages 7-11.