Administrative Order 17 - FAMILY MEDIATION PILOT PROJECT

Obsolete Date: 8/1/2009

SECTION 1. PURPOSE

The purpose of this order is to establish a Family Mediation Pilot Project. The mission of the Project is to explore a procedure to provide a high quality, impartial, and efficient forum for resolving disputed custody and visitation matters through mediation. The goal of the Project is to improve the lives of families and children who appear before the court by trying to resolve custody and visitation 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 child custody and visitation disputes in the Project districts: the South Central Judicial District and the Northeast Central Judicial District of North Dakota. 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) Project courts must offer mediation in cases in which there is a dispute or an unresolved issue regarding child custody or visitation, except as provided in this rule.

(B) The Supreme Court will fund the Project mediation orientation and mediation sessions as provided in this order.

(C) The Project administrator shall manage and oversee the Project as directed by the Chief Justice and the State Court Administrator.

(D) Mediators will be selected for the Project roster by the Project Administrator.

(E) The protocol referenced in this order shall be developed by the Project 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 legal custody, physical custody, or visitation of a child is an issue, must be referred by the clerk to the Project 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 custody modification may be referred by the clerk to the Project Administrator.

SECTION 6. EXCLUDED CASES

(A) The clerk may not refer proceedings:

(1) if the parties started mediating prior to commencement of the Project;

(2) if the custody or visitation 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 custody or visitation 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 Project Administrator shall assign a mediator, who shall prepare an order and schedule for mediation for approval by the assigned judge.

(B) The clerk 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 take place 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 Project 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 child custody or visitation 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 Project mediators must meet the criteria set forth in the Pilot Project 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 Project 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 Project 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 Project protocol.

(D) All mediators must follow the ethical guidelines set forth in the protocol. Any violation of ethical standards must be reported to the Project 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 Project 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 Project. 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 Project 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 five business days from signing to reconsider the decisions made in mediation. If neither party sends a written request to reconsider to the mediator within five business days, the mediator shall send a copy of the written summary and the Conclusion of Mediation Form to the parties, their attorneys, and 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 Project Administrator along with a copy of the Conclusion of Mediation Form 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, 2008, and remains in effect until further order of the Court.