Mediation Rules of Procedure

Rule M-1. Purpose of Mediation
Rule M-2. Voluntary Nature of Mediation
Rule M-3. Matters Eligible for Mediation and Filing Process
Rule M-4. Effect of Mediation on Arbitration Proceedings
Rule M-5. Mediator Selection and Role
Rule M-6. Mediation Ground Rules
Rule M-7. Memorandum of Understanding | MOU
Rule M-8. Legal Review of MOU for Pro Se Parties

Rule M-1. Purpose of Mediation

Mediation is a form of negotiation used for resolving disputes in a manner in which the parties themselves determine their outcome with the assistance of a mediator. The mediator is neutral, meaning he or she neither gains nor loses as a result of settlement or non-settlement in the matter. Additionally, mediators must disclose any personal bias that would impede in their ability to provide the parties with fairness and fair process. Until a settlement is reached, mediation may be discontinued by any party at any time.

Rule M-2. Voluntary Nature of Mediation

Neither USADR nor any mediator appointed to mediate a matter pursuant to these rules shall have any authority to compel a party to participate in mediation or to settle a matter.

Rule M-3. Matters Eligible for Mediation and Filing Process

Any matter may be submitted to USADR for mediation.

a)  Mandatory Mediation: Mediation initiated under a court order or contractual provision may be initiated by a claimant by filing a Mediation Submission Agreement with USADR along with the necessary filing fee and serving a copy on the respondent via certified mail, email with return receipt request, or by process service.  The respondent may respond within ten (10) days of service of the mediation submission agreement by filing a Response to Mediation Filing or by signing an agreement to mediate prepared by USADR's case administrator. If no response is received or if the respondent declines mediation, USADR shall, when provided proof of service by the claimant to the respondent, provide the claimant with a Letter of Non-Response indicating the date the case was filed and any subsequent efforts taken to bring the matter to mediation. This letter may be presented to the court or an arbitrator to demonstrate claimant's compliance with the mediation requirement.

b)  Voluntary Mediation: Mediation may be initiated voluntarily by signature of all parties on an agreement to mediate.

Rule M-4. Effect of Mediation on Arbitration Proceedings

Parties to arbitration may choose to mediate prior to the commencement of arbitration hearings. Unless the parties agree otherwise, the submission of a matter for mediation shall not stay or otherwise delay the arbitration of a matter pending under these rules. When all parties agree to stay the arbitration in order to mediate the claim, the arbitration proceeding shall be stayed, notwithstanding any provision to the contrary in these rules.

Rule M-5. Mediator Selection and Role

Unless the parties stipulate a mediator from USADR's panel, USADR's case administrator will appoint the mediator.

No mediator shall be permitted to serve as an arbitrator of any matter pending in USADR in which s/he served as a mediator, nor shall the mediator be permitted to represent any party or participant to the mediation in any subsequent USADR arbitration proceeding relating to the subject matter of the mediation.

USADR mediators are required to adhere to ABA Model Standards of Conduct for Mediators in effect at the time a mediator is appointed to a case. Where there is a conflict between the model standards and any provision of USADR mediation rules, USADR's rules shall govern.

The mediator shall decline appointment to a mediation case if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice. If at any time a mediator is unable to conduct mediation in an impartial manner, the mediator shall withdraw and USADR shall appoint a new mediator.

Rule M-6. Mediation Ground Rules

Any party may withdraw from mediation at any time prior to the execution of a written settlement agreement by giving written notice of withdrawal to the mediator, the other parties, and USADR. The fee schedule in place at the time of filing shall govern cancellation fees.

The mediator shall act as a neutral and impartial facilitator of the mediation / negotiation process and shall not have any authority to determine issues, make decisions or otherwise impose a reward to resolve the matter. The mediator is not a legal representative of any party and has no fiduciary duty to any party.

Mediation may be conducted in person or by conference call as determined by the mediator or by mutual agreement of the parties. The mediator shall facilitate, through joint sessions, caucuses and/or other means, discussions between the parties, with the goal of assisting the parties in reaching their own resolution of the matter. The mediator shall direct the negotiation process. The parties and their representatives agree to cooperate with the mediator in ensuring that the mediation is conducted expeditiously, to make all reasonable efforts to be available for mediation sessions, and to be represented at all scheduled mediation sessions either in person or through a person with authority to settle the matter.

Caucus: The mediator may meet with and communicate separately with each party or his/her representative. The mediator may notify the other parties of separate meetings or other communications and offer to give the same time and consideration to the other parties to maintain equidistance.

The parties agree to attempt, in good faith, to negotiate a settlement of the matter submitted to mediation. Notwithstanding that a matter is being mediated, the parties may, in the absence of the USADR mediator, engage in direct settlement discussions and negotiations.

Mediation is intended to be private and confidential. The parties and the mediator agree not to disclose, transmit, introduce, or otherwise use opinions, suggestions, proposals, offers, or admissions obtained or disclosed during the mediation by any party or the mediator as evidence in any action at law, or other proceeding, including a lawsuit or arbitration, unless authorized in writing by all other parties to the mediation or compelled by law, except that the fact that a mediation has occurred shall not be considered confidential.

The mediator will not transmit or otherwise disclose confidential information provided by one party to any other party unless authorized to do so by the party providing the confidential information.

A written, audio, video or visual record of mediation shall not be kept by USADR, the mediator, or the parties or their respective legal counsel.  At the conclusion of mediation, the USADR mediator shall collect the notes of those in attendance in mediation and destroy them.

Rule M-7. Memorandum of Understanding (MOU)

A primary goal of parties to mediation is to reach agreement on disputed matters and to reduce the terms and conditions of such agreements to a written document which is signed by the parties and suitable to file with a court of competent jurisdiction for final orders and/or enforcement, when necessary. Mediation may result in parties coming to partial agreements, relying upon the jurisdiction of the court for outstanding issues. Agreement is not guaranteed in mediation. The parties determine who drafts the Memorandum of Understanding:

a)  Attorney-drafted MOU: If a party is represented by legal counsel in mediation, the drafting of the terms and conditions of the agreement achieved in mediation may be undertaken by the attending attorney only with the consent of all of the parties. If the parties do not agree that the legal counsel should draft the MOU, the mediator shall work with the parties to put the agreement in writing.

b)  Mediator-drafted MOU: When parties attend mediation pro se or when the parties do not jointly agree that an attending attorney draft the MOU, the mediator may act as a scribe for the parties to reduce specific agreements achieved in mediation to writing.  The parties shall be present, either in person or via teleconference, during the drafting of the terms and conditions of the agreement.  USADR mediators shall not undertake the writing of comprehensive agreements on behalf of the parties separate from the actual agreements formed in mediation.  The quality and completeness of such agreements is the responsibility of the parties.

Rule M-8. Legal Review of MOU for Pro Se Parties

Pro se parties are encouraged to include a legal review provision in the MOU which includes:

•     that the parties attended mediation pro se
•     that the signed agreement is subject to the parties’ respective attorney’s review
•     that if a party's attorney states that a provision or provisions are contrary to legal advice, such objections shall be fully supported by the written and signed statement of the attorney, showing good cause for such objection, and sent to the other party and the mediator with proof of delivery or proof of attempted delivery
•     that only the specific provisions that are objectionable shall be renegotiated in mediation with the same mediator within a specified timeframe, leaving all other provisions in full force and effect.