Rule 16.3. Alternative dispute resolution

(a) In any proceeding, the Court may upon motion by either party or sua sponte enter a scheduling order that either establishes or limits the time to engage in compulsory alternative dispute resolution ("ADR"), the format of which is to be agreed upon by the parties. Such ADR may include, but shall not be limited to, non-binding or, if agreed to by the parties, binding arbitration, mediation or neutral case assessment. If the parties cannot agree on the format of ADR, the default format shall be mediation unless otherwise ordered by the Court. Mediation as referred to in this rule is a separate process from the mediation required in Family Court Civil Rule 16.1. Therefore, the provisions contained in this rule, including those related to confidentiality, shall not apply to Rule 16.1 mediations.

(b) In the event the parties cannot agree on an ADR Practitioner, they shall file a joint motion with the Court within thirty (30) days of the issuance of the scheduling order requesting that the Court appoint an ADR Practitioner for the parties. The Court may impose sanctions upon a party or both parties if it determines that the parties have not attempted to agree upon an ADR Practitioner in good faith.

(c) The parties shall pay the ADR Practitioner in accordance with the allocation and amount of fees established by the ADR Practitioner and agreed to by the parties or ordered by the Court. The ADR Practitioner may apply to the Court for sanctions against any party who fails to comply with the terms of engagement established by the ADR Practitioner and agreed to by the parties. Sanctions may include, but shall not be limited to, dismissal of the action or default judgment.

(d) The ADR Practitioner may not be called as a witness in any aspect of the litigation, or in any proceeding relating to the litigation in which the ADR Practitioner served, unless ordered by the Court. In addition, all ADR Practitioners, when serving as an arbitrator, mediator or neutral assessor, shall be immune from civil liability for, or resulting from, any act or omission done or made while engaged in ADR, unless an act or omission was made or done in bad faith, with malicious intent, or in a manner exhibiting a willful, wanton disregard of the rights, safety, or property of another. Each ADR Practitioner shall remain bound by any confidentiality agreement signed by the parties and the ADR Practitioner as part of the ADR.

(e) All memoranda, work products, and other materials contained in the case files of an ADR Practitioner or the Court related to the mediation are confidential. Any communication made in or in connection with the mediation which relates to the controversy being mediated, whether made to the ADR Practitioner or a party, or to any person made at a mediation conference, is confidential. The mediation agreement shall be confidential unless the parties otherwise agree in writing. Confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding except:

(1) Where all parties to the mediation agree in writing to waive confidentiality;

(2) In any action between the ADR Practitioner and a party to the mediation for damages arising out of mediation; or

(3) Statements, memoranda, materials, or other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use and actually used in the mediation conference.

(f) If a mediation is not successful, no party may use statements made during the mediation or memoranda, materials or other tangible evidence prepared for mediation at any point in the litigation in any way, including, without limitation, to impeach the testimony of any witness.

(g) The following definitions apply to this rule:

(1) "Arbitration" is a process by which a neutral arbitrator hears both sides of a controversy and renders a fair decision based on the facts and the law. If the parties stipulate in writing that the decision shall be binding, the case shall be removed from the Court's docket.

(2) "Mediation" is a process by which a mediator facilitates the parties in reaching a mutually acceptable resolution of a controversy. It includes all contacts between the mediator and any party or parties until a resolution is agreed to, the parties discharge the mediator, or the mediator determines that the parties cannot agree.

(3) "Neutral case assessment" is a process by which an experienced neutral assessor gives a nonbinding, reasoned oral or written evaluation of a controversy, on its merits, to the parties. The neutral assessor may use mediation or arbitration techniques to aid the parties in reaching a settlement.

(4) "ADR Practitioner" shall include the arbitrator, mediator, neutral case assessor or any other person engaged by the parties to facilitate ADR. History. Added, Mar. 20, 1996, effective May 1, 1996; amended, effective May 24, 2009; amended, Oct. 5, 2017, effective Jan. 1, 2018.