RULE 8.8 ALTERNATIVE DISPUTE RESOLUTION

Obsolete Date: 3/1/2011

(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:

(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 15 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 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 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 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.

(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.