Alabama ADRC :: Civil Court Mediation Rules :: Court Alternative Dispute Resolution (2024)

Civil Court Mediation Rules

Current with amendments received through 5-1-2014

Introduction:

These rules have been promulgated with the assistance of the American Arbitration Association, whose mediation procedures have been applied in whole or in part in these rules.

Table of Rules:

• Rule 1 - Definition of Mediation and Scope of Rules.
• Rule 2 - Initiation of Mediation: Stay of Proceedings.
• Rule 3 - Appointment of a Mediator.
• Rule 4 - Qualifications of a Mediator.
• Rule 5 - Vacancies.
• Rule 6 - Assistance and Settlement Authority.
• Rule 7 - Time and Place of Mediation.
• Rule 8 - Identification of Matters in Dispute.
• Rule 9 - Authority of Mediator.
• Rule 10 - Privacy.
• Rule 11 - Confidentiality.
• Rule 12 - No Record.
• Rule 13 - Termination of Mediation.
• Rule 14 - Interpretation and Application of Rules.
• Rule 15 - Expenses, Mediator’s Fee, and Deposits.

INTRODUCTION

These rules have been promulgated with the assistance of the American Arbitration Association, whose mediation procedures have been applied in whole or in part in these rules.
[Adopted effective August 1, 1992]

RULE 1. DEFINITION OF MEDIATION AND SCOPE OF RULES

(a)Mediation is an extrajudicial procedure for the resolution of disputes, provided for by statute and by the Alabama Rules of Civil Procedure. A mediator facilitates negotiations between parties to a civil action and assists the parties in trying to reach a settlement, but does not have the authority to impose a settlement upon the parties.

(b)These rules shall apply:
(1) In mediation ordered by the courts of this State as provided by statute or by the Alabama Rules of Civil Procedure;
(2)In any other mediations by parties in a pending civil action in an Alabama court, other than the Alabama Supreme Court or Alabama Court of Civil Appeals, unless the parties expressly provide otherwise; and,
(3)In other mediations if the parties agree that these Rules shall apply.
[Adopted effective August 1, 1992; amended effective February 3, 1998; June 26, 2002]

Comment to Amendment, Effective June 26, 2002

Passage of Act No. 96-515, 1996 Ala. Acts, codified at §6-6-20, Ala. Code 1975, introduced a statutory basis for courts to order mediation that necessitated changes in the first sentence of Rule 1 (a). This change will reduce the need to amend these Rules in the event of a new or revised mediation statute or a future change in the Alabama Rules of Civil Procedure.

The new language in the second sentence of Rule 1 (a) emphasizes the facilitation role of a mediator. The former language might be seen as suggesting a more decision-making role for the mediator – it used phrases such as “submit their dispute” and “(t)he mediator may suggest ways of resolving the dispute.” The new language does not eliminate the possibility of a mediator’s evaluating a dispute and suggesting solutions (see Rule 9).

The revisions to Rule 1 (b) are designed to clarify when the Rules are mandatory as opposed to when they are optional. Clearly, any mediation ordered by a court should be conducted according to these Rules. Because §6-6-20 is not limited to actions in the circuit court, the prohibition against mediation in district courts is abolished. Rule (b) (2) establishes a presumption in favor of the application of these Rules in all pending trial court cases except when the parties agree otherwise. This adds greater uniformity in mediation procedures statewide and eliminates confusion about the applicability of these Rules in non-court-ordered mediation. Similarly, Rule 1 (b) (3) was added to plainly state that these Rules may apply in any action, including mediation of a case pending in an appellate court, if the parties agree.

RULE 2. INITIATION OF MEDIATION; STAY OF PROCEEDINGS

Parties to a civil action may engage in mediation by mutual consent at any time. The court in which an action is pending shall order mediation when one or more parties request mediation or it may order mediation upon its own motion. In all instances except where the request for mediation is made by only one party, the court may allocate the costs of mediation, except attorney fees, among the parties. In cases in which only one party requests mediation, the party requesting mediation shall pay the costs of mediation, except attorney fees, unless the parties agree otherwise.

Upon the entry of an order for mediation, the proceedings as to the dispute in mediation may be stayed for such time as set by the court in its order of mediation. Upon motion by any concerned party, the court may, for good cause shown, extend the time of the stay for such length of time as the court may deem appropriate.
[Adopted effective August 1, 1992; amended effective June 26, 2002]

Committee Comment to Rule 2

Participation in the mediation process is strictly voluntary. Any party wishing to terminate the process may do so at any time pursuant to Rule 13. Pursuant to Rule 13, the mediation process is also terminated by expiration of the period of stay provided for by Rule 2.

Comment to Amendment Effective June 26, 2002

Section 6-6-20, Ala. Code 1975, allows one party to require a court to order mediation of a dispute, irrespective of the position of any other party to the dispute. This change in the law required the amendment of the first paragraph of Rule 2, to make the rule consistent with §6-6-20.

In cases where the court can apportion the costs of mediation, the court may want to balance a number of considerations when deciding whether and how to apportion mediation costs between the parties. It may be helpful for the courts to consider the commitment to the mediation process that derives when each party has a financial stake in the process. Courts may find mediations are more successful if each party is required to pay some portion of the mediation costs.

Rules 2 as originally adopted provided in the last paragraph that the underlying proceedings “shall be stayed”; the change to “may be stayed” provides greater flexibility to courts and disputants in staying all or part of a dispute during the course of meditation.

RULE 3. APPOINTMENT OF A MEDIATOR

Upon an order for mediation, the court, or such authority as the court may designate, shall appoint a qualified mediator. The mediator appointed shall be agreed upon by the parties concerned, subject to the qualifications provisions of Rule 4, except that if the parties do not agree upon a mediator, then the selection of the mediator shall be in the discretion of the court or its designated authority. A single mediator shall be appointed unless the parties or the court determines otherwise.
[Adopted effective August 1, 1992; amended effective June 26, 2002]

Comment to Amendment Effective June 26, 2002

The language added to the second sentence was necessitated by the language added to Rule 4 regarding qualifications of mediators in court-ordered mediations.

RULE 4. QUALIFICATIONS OF A MEDIATOR

“If a court designates or appoints a mediator, the mediator must be registered with the Alabama Center for Dispute Resolution, unless the court for good cause finds otherwise. No person shall serve as a mediator in any dispute in which that person has any financial or personal interest, except by the written consent of all parties. Before accepting an appointment, the prospective mediator shall disclose to the parties any circ*mstances likely to create an appearance of bias or likely to prevent the mediation from commencing within a reasonable time. Upon receipt of such disclosure, the parties may name a different person as mediator. If the parties disagree as to whether a prospective mediator should serve, the court shall appoint the mediator.”

Comment to Amendment Effective June 26, 2002

The first sentence of Rule 4 establishes a minimum standard for qualifications of mediators in court-ordered mediations. Presently, no statutory qualifications exist, so the rule was drafted to allow for the possibility of mediator qualifications by statute at a later date without the necessity of amending Rule 4.

The Alabama Supreme Court has adopted Mediator Registration Standards. The Rule does not require the selected mediator to actually be registered with the Alabama Center for Dispute Resolution, but the mediator must possess the training and skill sufficient to be registered.

Rule 4 applies only in court-ordered mediations; in mediations in which the parties mutually agree to mediate, the parties are free to select the mediator of their choice without regard to the provisions of Rule 4.

Any disclosures of possible bias, conflict of interest, or scheduling difficulty should be made to the parties, not the court. The parties are best situated to determine whether any of those items rises to such a level as to disqualify the mediator from serving. This should save time for judges, eliminate the possibility of the court’s rejection of a mediator the parties would have found acceptable, and gives the parties the greatest possible control over the process. If the disclosure causes a rejection of the proposed mediator by a party, the parties should have the first option to select a successor. The court would have the final say in the event the parties could not agree upon a successor mediator.

Comment to Amendment to Rule 4, effective April 1, 2020:

“It is understood that a court presiding over a particular case is better suited to determine what is best for the particular parties and disputes before it. Therefore, although registered mediators should be the general and preferred rule, the trial court presiding over the matter retains the ultimate authority to determine whether particular circ*mstances might suggest a different alternative. For example, “good cause” might include the appointment of retired judges, highly experienced attorney-mediators, or free or reduced-cost mediators, including pro bono mediation programs. Perhaps the particular unavailability of a registered mediator with qualifications the court desires might be considered “good cause.” Ultimately, the trial court is accorded considerable discretion in determining what is “good cause” for the appointment of a nonregistered mediator.”

(Adopted effective August 1, 1992. Amended effective June 26, 2002; April 1, 2020.)

RULE 5. VACANCIES

If any mediator becomes unwilling or unable to serve, the court shall appoint another mediator. The appointment of a successor mediator shall be by the same procedures and upon the same terms as an initial appointment.
[Adopted effective August 1, 1992; amended effective June 26, 2002]

RULE 6. ASSISTANCE AND SETTLEMENT AUTHORITY

Any party not represented by an attorney may be assisted by persons of his or her choice in the mediation. Each party, or that party’s representative, must be prepared to discuss during mediation sessions the issues submitted to mediation and, unless otherwise expressly agreed upon by the parties or ordered by the court before the first mediation session, someone with authority to settle those issues must be present at the mediation session or reasonably available to authorize settlement during the mediation session. [Adopted effective August 1, 1992; amended effective June 26, 2002]

Comment to Amendment Effective June 26, 2002

The first obligation imposed by the second sentence is that a party make reasonable efforts to participate in mediation by appearing at the mediation prepared to discuss the issues being submitted to mediation. This entails the party’s possessing a sufficient knowledge of the facts of the dispute and the law governing the dispute.

Lawyers representing clients in mediation since the adoption of these Rules in 1992 have identified a problem of some parties appearing at mediations without full or realistic settlement authority. Such a practice unnecessarily prolongs the mediation and can be used improperly as a discovery or negotiating tactic. The ultimate aim of mediation is the resolution of the dispute; therefore, each party has an obligation to ensure, before agreeing to a date and time for the mediation, that a person with settlement authority for all issues being mediated will be readily available throughout the mediation to approve a settlement negotiated during the mediation.

The rule attempts to strike the proper balance between having a person with full settlement authority physically present at the mediation session and allowing such person to be within reasonable contact, such as by telephone. Mediation of disputes with small amounts in controversy or where the person with settlement authority would incur substantial cost to travel to the site of the mediation might best be accommodated by using a telephone conference or similar long distance communication. On the other hand, one value of mediation is having the decision-makers, such as a corporation’s chief financial officer or chief executive officer, present to hear the discussions during mediation to personally assess the pros and cons of pursuing litigation versus settling the controversy for a particular amount. The default standard is that someone with full authority must be available, such as by telephone, fax, or other means that can provide input on the settlement within a reasonable time. The parties may negotiate or the court may require the parties to have a person with full settlement authority present throughout the mediation. Presumable this would occur only in cases in which the cost of having such a person present would be reasonable in light of the amount in controversy in the underlying dispute.

There are a number of different ways a party could communicate with a person with full authority to settle the dispute. This Rule presumes that a party will make every reasonable effort to ensure the person with settlement authority remains continuously available throughout the mediation to consult and provide input on a potential settlement proposal. Because the length and types of mediations may vary greatly, and because the decision-maker may be in a different time zone from the time zone of the location of the mediation, the Rule does not attempt to define what is reasonable. If one party has a concern over the extent of the settlement authority the representative of a party present at the mediation has, an effort to identify the person with adequate authority and the availability of that person during the mediation should be undertaken at the beginning of the mediation. This can be done through private sessions with the mediator at the beginning of the mediation to protect a party’s interest in not disclosing the extent of its settlement authority.

RULE 7. TIME AND PLACE OF MEDIATION

The mediator shall fix the time of each mediation session. The mediation sessions shall be held at any convenient location agreeable to the mediator and the parties or as otherwise designated by the court.
[Adopted effective august 1, 1992; amended effective June 26, 2002]

RULE 8. IDENTIFICATION OF MATTERS IN DISPUTE

A mediator may require each party concerned, within a reasonable time before the first scheduled mediation session, to provide the mediator with a brief memorandum setting forth the party’s position with regard to the issues that need to be resolved. The mediator shall not distribute the memoranda to the parties without their consent.

At the first session, the parties shall produce all information reasonably required for the mediator to understand the issues presented. The mediator may require either party to supplement this information.
[Adopted effective August 1, 1992; amended effective June 26, 2002]

Comment to Amendment Effective June 26, 2002

The former requirement that each party in every type of mediation provide the mediator with a brief memorandum at least 10 days before the first mediation session was unnecessarily inflexible. Parties and mediators alike frequently ignored that requirement. The better practice is to allow a mediator to require such a memorandum if, in the mediator’s judgement, a memorandum would be helpful or necessary. Therefore, “shall” is changed to “may” and the 10 days requirement is removed. In some cases, sharing the memoranda with the parties might facilitate the mediation, but the mediator should not allow the contents of any memorandum submitted by a party to be viewed by another party without the consent of the party who prepared the memorandum.

RULE 9. AUTHORITY OF MEDIATOR

The mediator does not have authority to impose a settlement upon the parties, but the mediator shall attempt to help the parties reach a satisfactory resolution of their dispute. The mediator is authorized to conduct joint and separate meetings with the parties, to communicate offers between the parties as the parties authorize, and, at the request of the parties, to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided the parties agree to the mediator’s obtaining such advice and assume the expenses of obtaining it. Arrangements for obtaining such advice shall be made by the mediator or by the parties. The mediator is authorized to end the mediation whenever, in the judgment of the mediator, further efforts at mediation would not contribute to a resolution of the dispute between the parties (see Rule13(a)(2).
[Adopted effective August 1, 1992; amended effective June 26. 2002]

Comment to Amendment Effective June 26, 2002

The amendment added the phrase “to communicate offers between the parties as the parties authorize” to the second sentence to emphasize that the parties control what offers are shared with another party and when those offers are shared. A mediator may, in private session, suggest a possible solution; however, the mediator must have the consent of the party with whom the proposed solution is first shared in order to communicate this proposed solution to the other party. Nothing in this section would prohibit the parties from mutually requesting a mediator to propose a solution to the dispute or an amount to settle a dispute. Indeed, the revision is not intended to reduce a mediator’s role in helping parties in joint or private sessions to find creative solutions.

The fourth sentence was revised to remove the phrase “as the mediator shall determine,” because the mediator does not have the power to compel any party to pay the costs of obtaining experts.

RULE 10. PRIVACY

Mediation sessions are private. An alleged victim of domestic or family violence may have in attendance at mediation a supportive person of his or her choice. In all other cases, persons other than the parties and their representative may attend mediation sessions only with the permission of the parties and with the consent of the mediator.
[Adopted effective August 1, 1992; amended effective June 26, 2002]

Comment to Amendment Effective June 26, 2002

The second sentence has been added to comply with §6-6-20 (f)(3), Ala Code 1975. This permits a person who is the alleged victim of abuse to bring a person, in addition to the party’s attorney, with him or her to the mediation, irrespective of whether the accompanying person is an attorney, without receiving permission from the mediator or other party. The changes to the last sentence simplified the language of the original Rule in an attempt to make clear who could attend and under what circ*mstances.

RULE 11. CONFIDENTIALITY

(a) All information disclosed in the course of a mediation, including oral, documentary, or electronic information, shall be deemed confidential and shall not be divulged by anyone in attendance at the mediation except as permitted under this Rule or by statute. The term “information disclosed in the course of a mediation” shall include, but not be limited to:

• (1) view expressed or suggestions made by another party with respect to a possible settlement of the dispute;
• (2) admissions made by another party in the course of the mediation proceedings;
• (3) proposals made or views expressed by the mediator;
• (4)the fact that another party had or had not indicated a willingness to accept a proposal for settlement made by the mediator; and
• (5)all records, reports, or other documents received by a mediator while serving as mediator.

(b) The following are exceptions to the general rule stated in Rule 11(a):

• (1) A mediator or a party to a mediation may disclose information otherwise prohibited from disclosure under this section when the mediator and the parties to the mediation all agree to the disclosure.
• (2) Information otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in mediation.
• (3)The confidentiality provisions of this Rule shall not apply:
  (i)to a communication made during a mediation that constitutes a threat to cause physical injury or unlawful property damage;
  (ii)to a party or mediator who uses or attempts to use the mediation to plan or to commit a crime; or
  (iii)to the extent necessary if a party to the mediation files a claim or complaint against a mediator or mediation program alleging professional misconduct by the mediator arising from the mediation.

(c)Except as provided in Rule 11 (b) above, a court shall neither inquire into nor receive information about the positions of the parties taken in mediation proceedings; the facts elicited or presented in mediation proceedings; or the cause or responsibility for termination or failure of the mediation process.

(d)A mediator shall not be compelled in any adversary proceeding or judicial forum, including, but not limited to, a hearing on sanctions brought by one party against another party, to divulge the contents of documents received, viewed, or drafted during mediation or the fact that such documents exist nor shall the mediator be otherwise compelled to testify in regard to statements made, actions taken, or positions stated by a party during the mediation.

[Adopted effective August 1, 1992; amended effective June 26, 2002; September 15, 2003.]

Comment to Amendment Effective June 26, 2002

Confidentiality is the backbone of mediation. The freedom to discuss issues privately with a mediator and in joint session with another party, without fear of disclosure outside the mediation, allows parties to safely explore potential alternative solutions to the dispute. Rule 11 is also designed to protect the mediator from later becoming embroiled in the parties’ dispute by being called as a witness in later proceedings between the parties.

Several changes were made in Rule 11 to help clarify the intent of the Rule and to provide some exceptions to better facilitate the intentions of parties and to conform to public-policy norms. First, Rule 11(b)(1) was added to permit disclosure when the parties to the mediation and the mediator all agree that disclosure is appropriate. Second, the use of information during a mediation was never intended to shield that information form future discovery during litigation if that information was otherwise subject to discovery. Paragraph 11(b)(2) was added to explicitly so state.

The exceptions in Rule11(b)(3) are consistent with confidentiality provisions in other states and similar to the requirements of the Alabama Rules of Professional Conduct for lawyers. Rule 11 is not intended to shield a party or a mediator from threats to cause injury to a person or to the property of another nor to shield evidence of an intent to commit a crime. Mediators may wish to advise parties to a mediation about this Rule before beginning a mediation. The exception in Rule 11(b)(3)(iii) also is similar to provision in other states. In the event a claim of professional misconduct is levied against a mediator, the mediator should not be barred from a reasonable defense to such allegations, including the use of statements made during a mediation. Any review of mediation proceedings as allowed under Rule11(b)(3) should be conducted in an in camera inspection.

Rule 11(d) is designed to explicitly state that courts cannot compel a mediator to disclose confidential information obtained during a mediation. In a situation where one party brings an action for sanctions against another party, as authorized by §6-6-20 it is possible that the only way for the court to determine a factual basis upon which to decide whether sanctions should be imposed would be through the testimony of the mediator. The value of preserving confidentiality was deemed to be more vital to the mediation process than aiding in determining the outcome of a sanctions hearing. Thus, mediators cannot, and should not, testify unless all parties to the mediation and the mediator consent to the testimony.

Comment to Amendment to Rule11(c) Effective Sept. 15, 2003

The amendment removes any confusion about whether a court could ever receive or hear information regarding a matter being mediated. The pre-amendment language of Rule 11(c) seemed to conflict with Rule11(b), which provides exceptions to the general rule, while subparagraph (c) expressed, in what appeared absolute terms, the rule that a court could never receive information about what occurred during a mediation. This amendment does not intend to fully ‘open the door’ to inquiries by judges, but opens the door only so much as necessary to give effect to the limited exceptions provided in Rule11(b).

RULE 12. NO RECORD

There shall be no record made of the mediation proceedings.
[Adopted effective August 1, 1992; amended effective June 26, 2002]

RULE 13. TERMINATION OF MEDIATION

(a)The mediation process may be terminated at any time after the initial mediation session by any party to the mediation. It also may be terminated by the mediator. Court- ordered mediations shall be terminated by filing with the court one of the following:
(1)Notice that the parties concerned have executed a settlement agreement. Such a notice shall be signed by all parties concerned or by their attorney; or
(2)A written declaration signed by the mediator stating that in the mediator’s judgment further efforts at mediation will not contribute to a resolution of the dispute among the parties (see Rule 9).

(b)Mediation also shall be terminated by the expiration of the period of any court- ordered stay provided by Rule 2.

(c) The fact that mediation has once been terminated as to a particular dispute shall not bar the entry of a late order to mediate that dispute.

[Adopted effective August 1, 1992; amended effective June 26, 2002].

Committee Comment to Rule 13

(1) Notification through subsection (2) assures confidentiality as to the party requesting termination.

(2)Notification through subsection (3) will allow either party to terminate the mediation process before a mediator is appointed, or, once a mediator has been appointed, will allow a party to terminate the process without further communicating with the mediator.

Comment to Amendment, Effective June 26, 2002

Notification through subsection (a)(2) assures confidentiality as to the party requesting termination.

The adoption of §6-6-20, Ala. Code 1975, removed the possibility of parties’ terminating the mediation process before at least one mediation session as subsection (a)(3) of the former Rule 13 envisioned. Because the statue provides for the imposition of sanctions against a party failing to comply with a mediation order, parties are presumed to have the responsibility to appear at least one mediation session. The first sentence of Rule 13(a) has been revised to include the language requiring at least one mediation session before the process is terminated. Subsection (a)(2) has been revised to clearly permit the parties to terminate the mediation after one session while maintaining anonymity as to which party terminated the process. Former subsection (a)(3) has been deleted.

RULE 14. INTERPRETATION AND APPLICATION OF RULES

The mediator shall interpret and apply these rules insofar as they relate to the mediator’s duties and responsibilities. In other respects, they shall be interpreted and applied by the Court.
[Adopted effective August 1, 1992; amended effective June 26, 2002].

RULE 15. EXPENSES, MEDIATOR'S FEE, AND DEPOSITS

(a) Expenses. The expenses of a witness for a party shall be paid by the party producing the witness. All other expenses of the mediation, including necessary travel and other expenses of the mediator, the expenses of any witnesses called by the mediator and the cost of any evidence or expert advice produced at the direct request of the mediator, shall be borne equally by the parties unless the parties agree otherwise, or unless the court directs otherwise.

(b) Mediator's Fee. A mediator shall be compensated at a reasonable rate, agreed to by the parties, or as set by the court. The mediator’s fee shall be borne equally by the parties, unless they agree otherwise, or unless the court directs otherwise pursuant to Rule 2.

(c) Deposits. Before the mediation process begins, each party to the process shall deposit with the mediator such an amount of the anticipated expenses and fees as the court shall direct or the mediator reasonably requires. When the mediation process has been terminated, the mediator shall render an accounting, requiring payment of additional expenses and fees by the appropriate parties, or returning any unexpended balance to the appropriate parties.

[Adopted effective August 1, 1992; amended effective June 26, 2002].

Comment to Amendment, Effective June 26, 2002

Most mediators deal directly with parties on matters of fees and expenses. The added language specifically provides for the mediator to make financial arrangements directly with the parties rather than depending upon the court. This promotes efficient use of judicial time as well as the time of the parties and mediator.

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