SECTION
1. PURPOSE
The purpose of this order is to establish a Family
Mediation Pilot Program. The mission of the Program is to explore a procedure
to provide a high quality, impartial, and efficient forum for resolving
disputed parental rights and responsibilities matters through mediation. The
goal of the Program is to improve the lives of families and children who appear
before the court by trying to resolve parental rights and responsibilities
disputes through mediation in order to minimize family conflict, encourage
shared decision-making, and support healthy relationships and communication
among family members.
SECTION 2. SCOPE
This order governs mediation in parental rights and
responsibilities disputes in the district courts. To the
extent the requirements of N.D.R.Civ.P. 16(b)
and N.D.R.Ct. 8.3(b) conflict with this order, this
order's provisions control. The N.D.R.Ct. 8.8
alternative dispute resolution statement requirement is satisfied by compliance
with this order.
SECTION 3. IN GENERAL
(A) District courts must offer mediation in cases in
which there is a dispute or an unresolved issue regarding parental rights and
responsibilities or relocation, except as provided in this rule.
(B) The Supreme Court will fund the Program
mediation orientation and mediation sessions as provided in this order.
(C) The Program administrator shall manage and
oversee the Program as directed by the Chief Justice and the State Court
Administrator.
(D) Mediators will be selected for the Program
roster by the Program Administrator.
(E) The protocol
referenced in this order shall be developed by the Program Administrator and
filed with the Clerk of the Supreme Court.
(F) Counsel for represented parties may participate
in mediation proceedings.
SECTION 4. DEFINITION
"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. A case evaluation or settlement conference under N.D.R.Civ.P. 16 is not "mediation" under
this order.
SECTION 5. QUALIFYING CASES
(A) Except as provided in Section 5 (B), within 10
days of filing, any proceeding for a divorce, separation, paternity, or
guardianship in which parental rights and responsibilities or relocation is an
issue, must be referred by the clerk to the Program Administrator.
(B) If the court decides that a prima facie case
under N.D.C.C. 14-09-06.6 has been established and that mediation may be useful
to the parties and the children, a post-judgment motion for parental rights and
responsibilities modification may be referred by the
clerk to the Program Administrator.
SECTION 6. EXCLUDED CASES
(A) The clerk may not refer proceedings:
(1) if the parties started
mediating prior to commencement of the Program;
(2) if the parental rights
and responsibilities issues are stipulated by the parties at the time of
filing;
(3) if a current domestic
violence protection order or other order for protection between the parties
exists.
(B) In a case in which an order for protection
exists, the court may require mediation if:
(1) 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;
(2) mediation is provided
by a mediator trained to address the needs and safety of victims where domestic
violence is at issue;
(3) the victim of domestic
violence is provided the opportunity for separate meetings with the mediator
during the mediation, and to mediate using separate rooms if they choose;
(4) mediation takes place
in a courthouse or other building where security measures are in place; and
(5) the victim has an
advocate or support person of his or her choice in the mediation.
SECTION 7. COURT REFERRAL
In addition to the clerk referrals, a district judge
or referee assigned to a parental rights and responsibilities proceeding may at
any time refer a case to family mediation, except as prohibited by this or any
other rule or statute.
SECTION 8. MEDIATION PROCEDURE
(A) When the clerk refers a case, the Program
Administrator shall assign a mediator and prepare an order and schedule for
mediation for approval by the assigned judge.
(B) The Program Administrator shall send the
approved order to the parties, their attorneys, and the mediator.
(C) The order must set time limits for the mediation
as follows:
(1) the parties must
contact the mediator and attend a pre-mediation orientation separately within
20 days of the date of the order;
(2) the mediation sessions
must be completed within 90 days of the date of the order.
(D) The parties and mediator must submit any request
to deviate from the order's time limits in writing to the judge presiding over
the case, who may allow a time extension for good cause.
(E) If a party fails to appear for orientation or
mediation sessions, the mediator shall promptly notify the Program
Administrator. The Administrator may report the violation to the judge
presiding over the case, who may order the party to show cause for failure to
appear.
SECTION 9. PRE-MEDIATION ORIENTATION
(A) All parties in parental rights and
responsibilities disputes must receive a mediation orientation session. The
assigned mediator must provide the orientation sessions to the parties
separately in a way that best meets the needs of the parties.
(B) At the orientation session, the mediator shall
inform the parties:
(1) what mediation is and
is not;
(2) what to expect from the
mediator;
(3) what the goals are for
mediation;
(4) any guidelines
necessary to have constructive conversations;
(5) how to prepare for the
mediation process;
(6) the role of the court,
lawyers, and other experts;
(7) how fee payment works;
(8) the time line for
mediation;
(9) any other relevant
information or requirements.
SECTION 10. SELECTION OF MEDIATORS
(A) Family Mediation Program mediators must meet the
criteria set forth in the Pilot Program protocol.
Mediators may apply to be placed on the roster of family mediators under Rule
8.9. Mediators must follow Rule 8.9's policies and procedures and they must
carry malpractice insurance that covers their mediation practice.
(B) Mediators may be assigned cases by the Program
Administrator and must manage cases assigned to them from orientation and
screening through conclusion of mediation.
(C) A mediator may not be removed unless the
mediator or the parties petition the Program Administrator. Parties may not
request a change of mediator unless they present evidence of bias or conflict
of interest as described in the ethical guidelines provided in the Family
Mediation Program protocol.
(D) All mediators must follow the standards of
practice set forth in the protocol. Any violation
of the standards must be reported to the Program Administrator.
SECTION 11. CONFIDENTIALITY
Mediators may not discuss or reveal the details of
any mediation proceeding or any information provided by a party in a mediation
proceeding to any judge, magistrate, or third party.
SECTION 12. PAYMENT FOR MEDIATION
(A) If a case is referred to the Program Administrator,
a pre-mediation orientation and screening with a mediator, and at least one
mediation session must be provided.
(B) The mediator shall be compensated at a rate
established by the Supreme Court.
(C) The parties must be allowed up to 6 hours of
mediator services without charge. The parties may purchase additional mediation
sessions at a rate established by the Supreme Court.
(D) Parties may request additional mediation sessions
and may apply for a fee waiver or sliding scale fee as established by the protocol. If, based on economic factors, the parties
qualify for a fee reduction, and additional sessions are approved, the Supreme
Court will pay the mediator any difference between the established fee rate and
the parties' reduced or waived fee.
SECTION 13. PILOT PROJECT EVALUATION
All mediators and parties shall cooperate with the
research and evaluation protocol to help
measure the impact and success of the Program. This may include providing
written comments, participating in a personal interview, and allowing
occasional observation during mediation if the parties approve, as provided in
the protocol.
SECTION 14. CONCLUDING MEDIATION
(A) The mediator must notify the Program
Administrator when the mediation has concluded for any reason, and advise the
judge presiding over the case of one of the following outcomes:
(1) agreement has been
reached in whole or part; or
(2) the parties were unable
to reach agreement.
(B) If the parties reach agreement, the mediator and
parties will prepare a written summary for the parties to sign noting
all agreements made and using the parties' own words. A copy of the signed
summary must be given to each party.
(C) The parties have seven five business
days from signing receiving the summary to reconsider the
decisions made in mediation. If neither party sends a written request to
reconsider to the mediator within seven five business days, the
mediator shall send a final copy of the written summary to the parties
and their attorneys, and file the mediation closing form with the clerk of
court with a copy to the judge presiding over the case.
(D) At the close of the case the mediator and the
parties must complete the required evaluation forms. The mediator shall submit
the forms to the Program Administrator along with a copy of the closing form,
mediator's log and the mediator's invoice. The mediator is responsible for
collecting fees from the parties if for additional mediation sessions not paid
by the court.
SECTION 15. EFFECTIVE DATE
This order is amended effective March 1, 2011, and remains in effect until further order
of the Court.