RULE 5. POST-JUDGMENT MEDIATION

Obsolete Date: 10/1/2014

(a) Purpose.

(1) The purpose of post-judgment mediation is to improve the lives of families who appear before the courts 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.

(2) The objectives of post-judgment mediation are to:

(A) support improved family decision-making and to promote agreement and compromise instead of further litigation and competition;

(B) improve access to mediation by providing funding;

(C) improve post-litigation family problem-solving and communication capacities by reestablishing communication through mediation;

(D) decrease litigation costs for litigants;

(E) create incentives to pursue mediation including flexibility to negotiate critical issues without judicial intervention;

(F) determine best practices for family mediation in North Dakota;

(G) improve rural access to post-litigation mediation services, as well as access by underprivileged and minority persons;

(H) 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) reduce post-judgment litigation and conflict in family cases; and

(J) help the public, judiciary, and bar become more aware of the benefits and nature of the mediation process.

(b) Program Management. The family mediation program administrator will manage and oversee the operation of the program under the supervision of the Supreme Court.

(c) Research and Evaluation. The program will include evaluation components.

(d) Mediation Process.

(1) Request for Mediation. Any party contemplating an appeal may forward a request for post-judgment mediation to the program administrator no later than 60 days after the service of notice of entry of judgment or order, or seven days after service of the notice of appeal, in any eligible case. 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.

(2) Eligible Cases. Only final and appealable judgments and orders in the following types of cases are eligible for participation in appellate mediation:

(A) divorce cases involving property or spousal support;

(B) any case involving parenting rights, except for termination of parental rights cases;

(C) any case involving residential responsibilities or support of minor children;

(D) any case involving grandparent visitation; and

(E) any case under the Uniform Probate Code or the Uniform Trust Code.

(3) Exemption from Mediation. Any party may request referral of an eligible case to post-judgment mediation. Referral must be granted unless a party requests an order from the court exempting the case from post-judgment mediation by filing a motion and an affidavit with the supreme court clerk within seven days of service of the mediation request. The court may exempt the case if:

(A) the issues raised are limited to a question of law; or

(B) prior post-judgment mediation has been attempted and the issues are substantially similar; or

(C) other good cause is shown.

(4) Exclusion from Mediation. The program administrator may not refer proceedings where a current domestic violence protection order or other order for protection between the parties 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;

(D) the mediation takes place in a courthouse or other building where security measures are in place; and

(E) the victim has an attorney or other advocate or support person of their choice in the mediation.

The Rule 5 (d)(4) exclusion and exceptions are intended to comply with the N.D.C.C. � 14-09.1-02 standards for family mediation.

(5) Screening and Assignment of Mediator. On receipt of a request for post-judgment mediation, the program administrator must determine whether a case meets the requirements for eligibility and appropriateness for mediation. Once a case has been approved for post-judgment mediation, the program administrator must assign a mediator eligible under Rule 5(e). The program administrator must send a notice of mediation to counsel, any unrepresented party, and the supreme court clerk. 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 a post-judgment mediator.

(6) Ordering of Transcript and Filing of Briefs. To expedite the mediation process and spare the parties as much initial expense as possible, the ordering of the transcript in cases assigned for mediation is extended to 21 days after 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 supreme court clerk under Rule 26(b).

(7) Mediation Orientation. The post-judgment mediation program will provide up to six hours of combined pre-mediation orientations and mediation. Mediators will be compensated at a rate set annually by the state court administrator. The post-judgment 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 six 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 program administrator for additional mediation sessions and may apply for a fee waiver or sliding scale fee should they qualify based on economic factors. The program administrator will determine whether a party is eligible for a fee waiver or fee reduction based on party income according to a schedule adopted by the Supreme Court. If the parties qualify for a fee reduction and have been approved for additional mediation, any "gap" between the set rate and their ability to pay will be paid to the mediator by the court under this program.

(8) Mediation Statement. On request of the mediator, the parties should each supply to the mediator, at least two days before the scheduled conference, a mediation statement no more than four 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 may not be filed in the office of the supreme court clerk. Mediation by telephone or other electronic means may be used if all parties and the mediator agree.

(e) Selection of Mediators.

(1) Eligibility. Any lawyer qualified as a post-judgment mediator under N.D.R.Ct. 8.9 may apply to be added to the roster of post-judgment mediators and will be approved by the program administrator. Mediators must carry malpractice insurance that covers their mediation practice.

(2) Mediation Assignment. Mediators will be assigned cases by the program administrator and will manage cases assigned to them from orientation and screening through conclusion of mediation.

(3) Conflicts of Interest and Bias. A mediator may not be removed unless the mediator and/or the parties' petition the 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.

(f) Mediation Outcome. Within seven days after completion of the mediation decision summary in appeals settled in whole or in part under Rule 5, the parties must file a copy of the decision summary and a request for the Supreme Court to take appropriate action, such as dismissal of the appeal under Rule 43 or remand to the district court. If a matter is remanded, the parties must file the appropriate papers with the district court to obtain an amended judgment, which must incorporate all terms of the decision summary. On entry of an amended judgment, the parties must request the Supreme Court to enter an appropriate order. In appeals not settled and terminated from mediation, briefing and oral argument will proceed under the rules. In cases settled by post-judgment mediation prior to the filing of a notice of appeal, the requesting party is responsible for obtaining an amended judgment incorporating all terms of the decision summary from the district court.

(g) Closing.

(1) Mediation Decision Summary. 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 seven days to reconsider the decisions made in mediation. If neither party files a written request to reconsider within seven days, the mediator must immediately send a copy of the decision summary to the parties and their attorneys, along with the Mediation Case Closing Form. (N.D.R.Ct. Appendix I, Form G).

(2) Evaluation. At the close of every mediation case, the mediator and the parties must complete the required evaluation forms and the mediator must submit those to the program 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 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.

(h) 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 program administrator, counsel, or the parties; and their agents or employees) to anyone not participating in the post-judgment mediation process. Mediators may not be called as witnesses, and the information and records of the program administrator may not be disclosed to judges, staff, or employees of any court.