SEVENTH JUDICIAL ADMINISTRATIVE DISTRICT
MEDIATION RULES
This mediation rule applies to the
GENERAL
POLICY:
The court will make information
about alternative dispute resolution (ADR) options available to all litigants.
DEFINITION:
Mediation. Mediation is a process in which a neutral
facilitates settlement discussions between parties. The neutral has no authority to make a
decision or impose a settlement upon the parties upon their needs and interests
rather than upon rights and positions.
Although in court-annexed or court-referred mediation programs the
parties may be ordered to attend a mediation session, any settlement is
entirely voluntary. In the absence of
settlement the parties lose none of their rights to a jury trial.
RULE 1. Referral to Mediation.
(a) Except as hereinafter provided,
any contested civil or domestic matter may be referred to mediation in the
(1) Whether the case is
appropriate for mediation;
(2) Whether the parties are able to compensate the mediator
if compensation is
required:
(3) Whether a need for
emergency relief makes referral inappropriate until the
request for relief is heard by the court.
(b) Cases in which there are
allegations of domestic violence will be screened to determine whether
mediation is appropriate:
(1)
Criminal cases that involve domestic violence will not be referred to
mediation from
any court.
(2) Civil cases will be
screened for domestic violence through intensive intake.
Intake procedures are designed to
identify those cases which should not be
referred to mediation and those cases
which might benefit from mediation.
(3) Until appropriate
safeguards are in place, including screening and evaluation,
civil cases involving issues of serious
domestic violence (systematic use of
force or threat of force, use of a
weapon, or serious injury) should not be
referred to mediation.
(4) If allegations of
domestic violence arise in the context of a mediation, a
mediator who has had no special training
in handling cases involving
domestic violence should in most
instances conclude the mediation and send
the case back to the court. In concluding the mediation, the mediator
should
take precautions to guard the safety of
the other party and of the mediator.
(5) The court will
develop a protocol for identification of civil cases involving
issues of domestic violence which might
benefit from mediation. Only
mediators who have received special
training should mediate such cases.
(6) No case involving
issues of serious domestic violence will be sent to
mediation without the consent of the
alleged victim given after a thorough
explanation of the process of
mediation. With the consent of the
alleged
victim a case involving issues of serious
domestic violence may be sent to
mediation at the discretion of the
court. Safeguards will be in place to
assure
the safety of the parties, attorneys, and
the mediator both during and after the
session as follows:
a. The parties should be living separately. The program should exercise
care to avoid disclosure of the parties’
place of residence by either the
program staff or mediator.
b. The
alleged victim shall have an attorney or advocate available for the
entire session or sessions. If the alleged victim does not have an
attorney, s/he should be invited to bring
an advocate or friend to the
mediation session to be available for
consultation and to see him/her
safely to his/her car.
c.
Arrangements should be made for the parties to arrive and leave the
mediation session separately.
d. The
session itself should be made safe through adequate security and
any other necessary means.
e.
Arrangements should be made for the session to be held entirely in
caucus
if that is necessary.
f. The
mediator conducting the session should have received special
training in dealing with issues of domestic
violence in the context of
mediation.
g. At the
earliest possible point in the mediation the mediator should
explore power dynamics in order to 1)
confirm the comfort of each
party with the mediation format and 2)
confirm the ability of each party
to bargain for him/herself.
(c) Previous Participation in
Mediation. Parties who have been through
an approved ADR process privately will not be required to participate in a
duplicative process. If parties are
required by statute to submit a dispute to any ADR process before filing suit,
the court will not require submission to mediation.
(d) Request for Mediation. Any party to a civil dispute may request that
the court refer the case to mediation or request that a matter referred to
mediation be referred to another ADR process.
The request for referral should be made to the judge assigned to the
case.
(e) Effect of Referral upon Progress
of the Case. The scheduling of a case
for a mediation conference shall not remove the case from assignment to a
judge, interfere with discovery, nor serve to postpone scheduled motions before
the court. The court may refer the
matter to mediation before any hearings before the Court.
(f) Interim or Emergency
Relief. A party may apply to the court
for interim or emergency relief at any time.
Mediation shall continue while such a motion is pending absent a
contrary order of the court or a decision of the mediator to adjourn pending
disposition of the motion. Time for
completing mediation shall be tolled during any periods where mediation is interrupted
pending resolution of such a motion.
(g) If court personnel other than
judges are involved in ADR referral decisions, these individuals will receive
appropriate training and will work within clearly stated written policies,
procedures and criteria for referral.
The Georgia Office of Dispute Resolution will assist courts in
developing guidelines for training court personnel in referral decisions.
(h) In actions brought by state
agencies seeking to enjoin activities injurious to the public interest, the
agency may within 10 days of service of the action make a showing to the trial
court interest. Upon a showing of
reasonable probability of such adverse effect, the court will proceed with
emergency measures provided by law.
Later referral to an ADR process may be appropriate if the emergency
measures do not bring the case to conclusion.
(i) The court may impose a users’ fee upon any party
participating in mediation who has not paid a filing fee surcharge at the time
the action was filed.
(j) Unless a standing order has been entered, the judge
referring a case will enter an order referring the case to mediation. The original order will be filed with the
clerk of court with copies sent to all attorneys of record and the dispute
resolution office.
RULE 2. Timing of Referral to Mediation
(a) Conference or Hearing Date. Unless otherwise ordered by the Court, the
first mediation conference shall be held within 30 days for domestic cases, 60
days for general civil cases after the filing of the last responsive pleading.
(b) Notice. The parties shall select a mediator in
accordance with Rules 4 and 5 herein.
Within 10 calendar days after the case is referred to mediation, the
parties will inform the mediation coordinator of the name of the mediator and
the date and time for mediation. Notice
to the mediation coordinator is technically the plaintiff’s
responsibility. However, upon agreement,
anyone may schedule the mediation.
(c) Rescheduling: Once a mediation
session is scheduled, NO UNILATERAL RESCHEDULING IS PERMITTED. The party or attorney who is requesting that
a mediation session be rescheduled must obtain consent from opposing counsel
and the assigned mediator. The dispute
resolution office must also be notified of any rescheduling attempts.
(d) Cancellations: Cancellations with
no attempt to reschedule the mediation session will only be permitted where one
or both of the parties has applied for relief from the judge to whom the case
has been assigned, or is in compliance with the Uniform Rule related to
conflicts. If a session is canceled due
to conflict, the attorney with the conflict must coordinate the
rescheduling. If a case is resolved
prior to the scheduled mediation session, the session may be canceled upon
written notification to the mediator and dispute resolution office of the
settlement. NO OTHER CANCELLATIONS WILL BE PERMITTED AND WILL BE A VIOLATION OF
THE COURT RULE TO ATTEND.
RULE 3. Exemption or Exclusion of cases from
Mediation
(a) Any party to a dispute referred
to mediation may petition the court to exclude the case form mediation if:
(1) The issue to be
considered has been previously mediated by a mediator
registered with the State Office of
Dispute Resolution as mediator in the area
of the dispute;
(2) The issue presents a
question of law only;
(3) Other good cause is
shown before the judge to whom the case is assigned;
(4) The issues have been
referred by consent order of court to a private provider
of mediation services;
(5) The case was filed
under the Family Violence Act.
(b) The following actions shall not be
referred to mediation except upon petition of all parties or upon sua sponte motion
of the court:
(1) Appeals from rulings
of administrative agencies;
(2) Forfeitures of
seized property;
(3) Habeas corpus and
extraordinary writs;
(4) Bond validations;
(5) Declaratory relief;
(6)
URESA (Uniform reciprocal Enforcement of Support Act);
RULE 4. Appointment of the Mediator.
(a) The parties shall agree upon a mediator from the list
of mediators registered by the Georgia Office of Dispute Resolution who have
been chosen for service in the program.
i Parties who have been through an approved ADR
process privately will not be
required to participate in duplicative
process;
ii After a case is filed, parties are free to
choose their own neutral and negotiate
a fee with that neutral before a case is
ordered to an ADR process; however,
the confidentiality and immunity
protections of the Georgia Supreme Court
ADR Rules do not apply in the absence of a
court order referring the case to
mediation;
iii Once the case is ordered to an ADR process, parties
are still allowed to choose
their own neutral and proceed under that
neutral’s fee or negotiate a fee with
that neutral provided the neutral chosen
is registered with the Georgia Office
of Dispute Resolution in the appropriate
category;
iv Where possible, parties should be allowed
input into the choice of process as
well as choice of a neutral.
v Should the parties fail to agree upon a
mediator, the court or mediation
coordinator will appoint a mediator from
the list of mediators qualified for
service in the program and may set the
fee. The court will not order the
parties to mediation with any private
individual or entity without consent of
the parties.
(b) Disqualification of a
Mediator. Any party may move to enter an
order disqualify a mediator for good cause.
If the court rules that a mediator is disqualified from a case, an order
shall be entered setting forth a qualified replacement from the list of
mediators in good standing of the Seventh District Mediator Roster. The motion disqualifying the mediator shall
be presented to the dispute resolution coordinator who shall present the motion
to the judge to whom the case is assigned.
RULE 5. Mediator Qualifications for Service
in the Program.
The qualifications for service as a mediator in the Seventh
District Program shall be determined by the participating judges of the
District in conjunction with the dispute resolution coordinator. The qualifications shall not be less than the
minimum qualifications set out in the Supreme Court Rules for Alternative
Dispute Resolution Programs. Appropriate
use of non-lawyer mediators is encouraged.
The qualifications for service shall be approved by the Georgia
Commission on Dispute Resolution and shall be filed with the Georgia Commission
on Dispute Resolution and shall be filed with the Georgia Supreme Court as an
appendix to this rule. The program will
maintain a roster of mediators chosen for service in the program. Mediators serving in the program will be
evaluated by the program on an ongoing basis.
RULE 6. Compensation for Mediators Compensated
by the Parties.
(a) Parties are encouraged to agree
upon compensation of the mediator at or before the first mediation
conference. Relevant factors to be
considered in determining an appropriate fee include the complexity of the litigation,
the degree of skill necessary to mediate the dispute, and the ability of the
parties to pay. Mediators are required
to list their fee schedules as part of their applications. The court will review the fee schedules for
reasonableness. Daily rather than hourly
rates are encouraged. When deemed
appropriate, the mediator may be compensated a maximum of one hour preparation
time per case.
(b) If the parties are unable to
agree upon compensation of the mediator, then the assigned judge at the
interlocutory hearing or final trial may order either or both parties to pay or
share the cost of the mediator. When the
compensation is set by the court, the costs will be predicated upon the
complexity of the litigation, the degree of skill necessary to mediate the
case, and the ability of the parties to pay.
(c) Before being placed on the
roster of approved mediators, a mediator must agree to provide pro bono hours
and hours at reduced rates to defray mediation costs for parties with limited
ability to pay. The number of hours
required will be determined by the superior court judges of the circuit.
(d) A mediator who is compensated by
the parties may be required to remit an administrative fee of up to $15.00 per
case to the mediation program by the close of the next business day following
the receipt of payment or partial payment of mediation compensation.
RULE 7. Confidentiality and Immunity.
A. The extent of Confidentiality:
Any statement made during a
court-annexed or court-referred mediation conference or as a part of intake by
program staff in preparation for mediation is confidential, not subject to
disclosure, may not be disclosed by the mediator or program staff, and may not
be used as evidence in any subsequent administrative or judicial proceeding. A written and executed agreement or
memorandum of agreement resulting from a court-annexed or court-referred
mediation is not subject to the confidentiality described above.
Any document or other evidence
generated in connection with a court-annexed or court-referred mediation is not
subject to discovery. An agreement
resulting from a court-annexed or court-referred mediation conference is not
immune from discovery unless the parties agree in writing. Otherwise discoverable material is not
rendered immune from discovery by use in mediation.
Neither the neutral nor any observer
present with permission of the parties in a court-annexed or court-referred ADR
process may be subpoenaed or otherwise required to testify concerning a
mediation conference in any subsequent administrative or judicial
proceeding. A neutral’s notes or records
of the court-annexed or court-referred program are not subject to
discovery. Notes and records of a court
ADR program are not subject to discovery to the extent that such notes or records
pertain to cases and parties ordered or referred by a court to the program.
B. Exceptions to Confidentiality:
Confidentiality on the part of program staff or the neutral
does not extend to the issue of appearance.
Confidentiality does not extend to a situation in which a) there are
threats of imminent violence to self or others; or b) the mediator believes
that a child is abused or that the safety of any party or third person is in
danger. Confidentiality does not extend
to documents or communications relevant to legal claims or disciplinary
complaints brought against a neutral or an ADR program and arising out of an
ADR process. Documents or communications
relevant to such claims or complaints may be revealed only to the extent
necessary to protect the neutral or ADR program. Nothing in the above rule negates any
statutory duty of a neutral to report information. Parties should be informed necessary to
monitor the quality of a program is not considered a breach of confidentiality.
C. Immunity:
No neutral in court-annexed or
court-referred program shall be held liable for civil damages for any
statement, action, omission or decision made in the course of any ADR process
unless that statement, action, omission or decision is 1) grossly negligent and
made with malice or 2) is in willful disregard of the safety or property of any
party to the ADR process.
RULE 8. Appearance.
The presence of parties at all mediation conferences is
required unless the court finds that
a party is
a nonresident or is incapacitated or otherwise authorizes the party’s
absence. The requirement that a party
appear at a mediation conference is satisfied if the following persons are
physically present:
(a) The party and/or
(1) The party’s
representative who has
a) full
authority to settle without further consultation and;
b) a full
understanding of the dispute and full knowledge of the facts;
(2) A representative of
the insurance carrier for any insured party if that
representative has full authority to
settle without further consultation, except
that telephone consultations with persons
immediately available are permitted.
(b) Attorneys are not required to
attend mediation conferences but may not be excluded by the court or the mediator.
(c) In domestic relations cases
involving temporary or permanent child support, alimony, equitable division of
property, modification of alimony or attorneys’ fees, a financial affidavit is
required pursuant to U.S.C.R. 24.2. If a
party fails to bring a copy of a current, notarized financial affidavit, that
party will be deemed to have not appeared and subject to the sanctions stated
in Rule 11 below.
(d) In domestic relations cases in
which the parties are required to attend the “Children Cope with Divorce”
seminar pursuant to a standing court order or a specific order in the case, the
parties are strongly encouraged to attend the seminar prior to the mediation
session.
RULE 9. Sanctions For Failure to Appear.
If a party fails to appear at a duly
noticed mediation conference without good cause, fails to give 24 hours notice
of cancellation or rescheduling, or fails to bring a current, notarized
financial affidavit when required, the dispute resolution staff shall notify
the judge to whom the case is assigned.
The judge, upon motion, may impose sanctions including the award of
mediator and attorney costs against the party failing to appear.
RULE 10. Communication with Parties.
The only ex parte communication
between a party and mediator outside of the mediation
conference
shall be for the purposes of verifying appointment times and locations or
answering questions about the mediation process and procedures. The mediator may meet privately with any
party or any attorney during the mediation conference.
RULE 11. Communication with the Court.
(a) In order to preserve the
objectivity of the court the neutrality of the mediator, there should be no
communication between the mediator and the court. If any communication between the court and a mediator
is necessary, the communication shall be in writing or through the dispute
resolution coordinator. Copies of any
written communication with the court should be given to parties and their
attorneys.
(b) Once a mediation is underway in
a given case, contact between the dispute resolution coordinator and the court
concerning that case should be limited to:
(1) Communicating with
the court about the failure of a party to attend;
(2) Communicating with
the court with the consent of the parties concerning
procedural action on the part of the
court that might facilitate the mediation;
(3) Communicating to the
court the neutral’s assessment that the case is
inappropriate for that process;
(4) Communicating any
request for additional time to complete the mediation;
(5) Communicating
information that the case has settled or has not settled and
whether agreement has been reached as to
any issues in the case;
(6) Communicating the
contents of any agreements unless the parties agree in
writing that the agreement should not be
disclosed;
(7) Communicating with
the consent of the parties information concerning any
discovery, pending motions or action of
any party that, if resolved or
completed, would facilitate the
possibility of settlement.
RULE 12. Completion of Mediation
(a) Mediation shall be completed
prior to any scheduled hearing or trial or within 30 days
of the
order referring the matter to mediation if it is a domestic case or within 60
days of the
order
referring the matter to mediation if it is a civil case, whichever is sooner,
unless extended by order of the court.
The motion asking for extension of the mediation shall be submitted to
the dispute resolution coordinator, who shall present the motion to the judge
to whom the case is assigned.
(b) The length of the mediation
session will depend on the nature of the contested issues and on the parties
themselves. The parties should be
prepared to spend a minimum of two hours at the initial session.
(c) The mediator may adjourn the
mediation conference at any time and may set times for reconvening the
adjourned conference not withstanding Rule 2.
No further notification is required for parties present at the adjourned
conference.
(d) Agreement. If an agreement is reached, it shall be
reduced to writing. If possible, the
agreement should be reduced to writing at the end of the mediation conference. In the event that the agreement cannot be
reduced to writing at the end of the mediation conference, it should be reduced
to writing within 3 calendar days after the mediation. It is the mediator’s responsibility to draw
the agreement unless all parties determine otherwise.
(1) If parties are
represented by counsel present at the mediation, the agreement
should be reduced to writing by the
mediator and signed by the mediator,
parties, and attorneys at the end of the
mediation conference.
(2) If any party is
unrepresented or is represented by an attorney who is not
present, the agreement should be reduced
to writing by the mediator and
signed by the mediator and parties at the
end of the mediation conference.
The parties will have an opportunity to
have the agreement reviewed by an
attorney.
If there is no objection to the agreement within 3 calendar days
following signing, the program
coordinator will file the agreement with the
court.
(e) If a partial agreement is
reached, it shall be reduced to writing and signed by the
parties
and counsel, if any, in the same manner as outlined above for the full
agreement.
(f) If the parties do not reach an
agreement as to any matter as a result of mediation, the mediator shall report
the lack of an agreement to the dispute resolution director. The dispute resolution coordinator shall
notify the judge to whom the case was assigned of the lack of an
agreement. With the consent of the
parties, the mediator’s report may also identify any pending notices or
outstanding legal issues, discovery processes, or other action by any party
that, if resolved or completed, would facilitate the possibility of a
settlement.
RULE 13. Role of counsel.
Attorneys of record shall never be
excluded from the mediation conference.
The mediator shall at all times be in control of the mediation and
procedures to be followed during the mediation.
Counsel shall be permitted to communicate privately with their clients
at any time. Counsel’s presence at the
mediation is a matter to be decided by the attorney and the client, unless
otherwise ordered by the court. If
counsel is not present, any agreement reached is subject to counsel’s review
and approval. See Rule 12(d).
RULE 14. Court conflicts.
For the purpose of conflicts, as
contemplated under the Uniform Rules of Superior Courts, the mediation
procedure shall be construed as being non-jury proceeding and counsel and the
parties may rely upon said designation in resolving any scheduling conflicts.
RULE 15. Evaluation.
The dispute resolution coordinator
will provide to the Office of Dispute Resolution information that will allow an
evaluation of the program. This
information will be provided on an ongoing basis. The model for this evaluation will be
provided by the Georgia Office of Dispute Resolution. Participants will not be contacted for
evaluation without their permission. The
program should seek permission of the parties for this contact either at the beginning
of the mediation or by means of an exit survey.