Civil Court Mediation Rules

Current with amendments received through 5-1-2003

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.

Outline:

  

RULE 1. DEFINITION OF MEDIATION AND SCOPE OF RULES

(a) Mediation is an extra judicial 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 mediations 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.

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.

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.

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.

RULE 4. QUALIFICATIONS OF A MEDIATOR

In court-ordered mediations, the mediator shall have those qualifications required by statute or by the Alabama Supreme Court Mediator Registration Standards or, in the absence of such statute or standards, the mediator shall have those qualifications the court may deem appropriate given the subject matter of the mediation. 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 circumstances 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.

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.

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.

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.

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.

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 Rule 13(a)(2)).

RULE 10. PRIVACY

Mediation sessions are private. An alleged victim of domestic or family violence may have in attendance at mediations a supporting person of his or her choice. In all other cases, persons other than the parties and their representatives may attend mediation sessions only with the permission of the parties and with the consent of the mediator.

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) views 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) 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.

RULE 12. NO RECORD

There shall be no record made of the mediation proceedings.

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 attorneys; 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 later order to mediate that dispute.

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.

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.

Back to Index

  

Loading

Help for your Home

FREE Foreclosure Mediation
Download our Brochure, Free Mediation to Prevent Foreclosure
 

About
Foreclosure Prevention Mortgage Modification Mediation Program

Find a
Foreclosure Mediator

Select AL ADR Mediation Cases

Mediation

Training & Events

Our training calendar lists upcoming opportunities for professional training.