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Rule 12-A. Mediation

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(1)  Cases pending at the supreme court may be referred to the office of mediation and arbitration for mediation as set forth in this rule. All mediation will be conducted by a retired full-time judge, retired full-time marital master, or other qualified mediator as determined by the supreme court in conjunction with the office of mediation and arbitration.

(2)  With the exception of cases listed in the following paragraph, cases accepted by the court may be referred to the office of mediation and arbitration for mediation upon the agreement of all parties. 

The following cases are not eligible for mediation:  criminal cases; domestic violence cases; election cases; guardianship cases; involuntary commitment cases; juvenile cases, including abuse and neglect, CHINS, delinquency, and termination of parental rights cases; cases brought by a prisoner in the custody of a correctional institution; and stalking cases.

(3)  When an acceptance order is issued in a case that appears to be eligible for mediation under this rule, the clerk shall provide the moving party with a mediation agreement form.  If all parties agree to mediation, the moving party shall submit the completed mediation agreement form to the court within 15 days of the date of the acceptance order, and shall send a copy of the completed form to all parties.  In a case in which more than one appeal has been filed, the order shall indicate who will be considered the moving party for the purpose of submitting the mediation agreement form.

(4)  Upon receipt of a completed mediation agreement form, an order will be issued by the clerk referring the case to the OMA for mediation.

(5)  Any order referring a case to mediation shall impose a fee of $225.00 per party to be paid to the mediation and arbitration fund.  This fee will be used to pay mediator compensation, and is not refundable.   On its own motion, or upon motion of the parties, the court may order an individual $225.00 fee to apply to multiple plaintiffs or defendants, if under the circumstances of the case, the court determines that the per party fee would cause undue hardship if it were applied to individual parties, or if one fee for multiple parties on the same side is deemed equitable by the court.  Parties who are indigent may petition the court for waiver of the fee.

(6)  Unless the order referring a case for mediation provides otherwise, when a case is referred to mediation, further processing of the case by the court will be suspended for a period of 90 days.  If the ADR coordinator or the mediator believes that additional time is needed to complete the mediation, the ADR coordinator or mediator may file a notice with the court of an automatic extension of no more than 30 days.  Upon filing of the notice, further processing of the case shall be suspended for the additional time without further order of the court.  Extensions of time of more than 30 days may be requested only by motion to the court and are not favored.

(7) After a case has been referred to mediation, the office of mediation and arbitration shall be responsible for selecting a mediator and scheduling a mediation session.  The parties shall comply with the rules for appellate mediation.  All communications and filings of the parties related to the mediation session shall be sent to the office of mediation and arbitration and shall not be filed with the court, with the exception of filings relating to whether the case should be remanded to the court to resume processing of the case or requesting an extension of time to complete mediation.

(8) If the ADR coordinator determines at any time after a case has been referred that the case should not be mediated, the ADR coordinator shall notify the clerk in writing.  Thereafter, an order will be issued indicating that processing of the case will resume in accordance with Supreme Court rules.

(9) Within 15 days after the conclusion of mediation, the mediator shall file a written report with the court of the results of the mediation.  The report shall state whether a full or partial settlement was reached and describe the effect of the settlement on the pending case.  The report shall not disclose the mediator’s assessment of any aspect of the case or confidential matters discussed during the session or sessions.

(10) If the mediator reports that there has not been a full settlement of a case referred for mediation, or upon expiration of the period during which processing of the case was suspended, the court ordinarily will resume processing the case in accordance with Supreme Court rules unless circumstances would make this inappropriate.

(11)  Mediation proceedings and information relating to those proceedings shall be confidential.  Information submitted or discussed during mediation shall not be disclosed or used in any subsequent proceeding.  Statements made and documents prepared by a party, attorney, or other participant in aid of such proceeding shall be privileged and shall not be disclosed to any court or arbitrator or construed for any purpose as an admission against interest. Mediation proceedings under this rule are deemed settlement conferences consistent with the Rules of Evidence.  Parties shall not introduce into evidence, in any subsequent proceeding, the fact that there was a mediation or any other material concerning the conduct of the mediation except as required by the Rules of Professional Conduct or the Mediator Standards of Conduct.  Evidence that would otherwise be admissible in another proceeding shall not be rendered inadmissible as a result of its use in mediation.

(12)  The ADR coordinator may adopt procedural rules to govern the appellate mediation process.