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RULE 92
COURT ALTERNATIVE DISPUTE RESOLUTION SERVICE
This
rule shall govern the operation of the Court Alternative Dispute Resolution
Service established pursuant to 4 M.R.S. ¤ 18-B.
(1) Rule 16B Referrals in the Superior
Court. Unless exempted,
all contested civil actions filed in or removed to the Superior Court are
subject to the alternative dispute resolution (ADR) process specified in Rule
16B.
(2) Referees. Rule 53 governs reference of cases in the Superior
Court or the District Court, including reference of family matters.
(3) CADRES Referrals Not Otherwise
Governed. By
agreement of the parties or in the courtÕs discretion upon a finding of good
cause, any civil action not otherwise governed or exempted by statute, rule, or
order, may be referred to ADR through the Court Alternative Dispute Resolution
Service (ÒCADRESÓ) or another ADR agreed to by the parties. The following applies to civil actions
referred to ADR through CADRES:
(A) Administrative Fee. If the referral is made through CADRES, the parties
shall pay an administrative fee of $20.00 to the clerk, which fee shall be
shared equally by the parties and collected by the clerk, unless in forma pauperis status has been granted
pursuant to Rule 91;
(B) Notification to CADRES. Upon
payment of the administrative fee, the clerk shall notify CADRES of payment and
send a copy of the referral order to CADRES;
(C) Selection of Provider. Except when proceeding pursuant to Rule 16B or Rule 53,
in actions referred to mediation or
another form of ADR through CADRES, the
parties shall select their ADR provider from the roster approved by CADRES;
(D) Date and Location of ADR. Once
selected, the ADR provider shall assist the parties in arranging a mutually
agreeable date, time, and location for mediation. ADR may take place at a courthouse, if space is available
and if authorized by the clerk; and
(E)
Compensation to Provider. The parties and the ADR provider shall
negotiate and agree on compensation for services, and such compensation shall
be paid directly to the ADR provider.
(1) Mediation Required. All
contested divorce, parental rights, judicial separation, and child support
actions shall be referred to mediation, unless mediation is waived pursuant to
19-A M.R.S. ¤ 251(2)(B).
(2) Mediation Optional. Actions
for visitation rights of grandparents, emancipation of minors, paternity, and
motions to modify a preliminary injunction, motions to enforce a judgment, and
motions for contempt may be referred to mediation.
(3) Mediation Not Available.
Protection from abuse and protective custody actions (other than those
that may be specially referred or included in a pilot mediation program) are
not subject to referral to mediation.
(4) Court Defined. As used
in this subdivision (b) of the Rule, the term ÒCourtÓ includes a Justice, Judge
or Family Law Magistrate.
(5) CADRES Referral. In all contested family matters referred to mediation
through CADRES, the following shall apply:
(A) Date and Location of Mediation.
Mediation shall occur prior to the assignment of a hearing date unless
otherwise ordered by the court.
Mediation shall be scheduled to occur within 28 days of the order for
mediation, unless otherwise ordered by the court. Mediation shall be held at a courthouse, unless otherwise
authorized by the court or the Director of CADRES;
(B) Mediation Fee. A
mediation fee as set by the court shall be paid by the date ordered, which
shall be before the mediation or when mediation is requested by a party. The fee entitles the parties to two
mediation sessions. An additional
mediation fee is due for any further mediation. When a mediation session is not held due to failure of one
or more participants to appear, the court may reschedule the mediation session
at no additional cost and/or impose sanctions. No mediation fee is required for mediation of motions solely
to enforce child support orders or when mediation is requested by the
Department of Health and Human Services;
(C) Apportionment and Payment of
Mediation Fee. The
mediation fee shall be shared equally by the parties, unless otherwise ordered
by the court. In ordering payment
of the mediation fee, the court shall specify the amount due by each party with
a payment date;
(D) Assignment of Mediators.
Mediators on the Domestic Relations Mediation Roster shall notify the
clerk of the courts to which they are assigned by CADRES of the dates and times
at which they are available to mediate.
The clerks shall assign mediation to eligible rostered mediators on a
rotating basis that is generally equitable over time. If a party or attorney requests assignment of a specific
mediator, the clerk shall attempt to honor that request to the extent
practicable. If a party or
attorney objects to the assignment of a certain mediator, the clerk shall honor
that request and assign a different mediator. At least twice annually, CADRES shall supply to every District
Court a current list of mediators on the Domestic Relations Mediation Roster
for that court;
(E) Attendance at Mediation. Each party and their attorney, if any, shall be
present at mediation and shall make a good faith effort to mediate all disputed
issues. In exceptional
circumstances, a party may participate by telephone with the prior approval of
the court. If any party or
attorney fails to attend or to make a good faith effort to mediate, the court
may impose appropriate sanctions;
(F) Exchange of Information. If any financial issues, including child support,
spousal support, or property division are contested, each party shall complete
and file with the court, with a copy to the other party, a properly completed
Child Support Affidavit, Child Support Worksheet and Financial Statement. When required, these documents shall be
filed with the court at least three (3) business days prior to the scheduled
mediation; and
(G) Continuances. A party requesting a continuance of a mediation session
shall file a written motion with the clerk at least four (4) days in advance of
the scheduled mediation, and shall otherwise comply with the requirements of
Rule 40(c), including the requirement that the motion to continue or cancel a
scheduled mediation must be filed immediately after the cause or grounds
becomes known. All continuance
requests shall be heard and ruled on by the court. A mediator may not grant a continuance for mediation or
reschedule a mediation session.
(c) Mediation of Small Claims.
(1) Mediation Required. The
parties to all Small Claims cases may be required to participate in mediation
as ordered by the court. This
requirement does not apply to Small Claims disclosure actions, which are not
subject to referral to mediation.
(2) Date and Location of Mediation.
Mediation shall take place on the hearing date, unless all parties agree
to hold mediation prior to the hearing date, and CADRES is able to arrange for
mediation. Mediation shall take
place at a courthouse, unless otherwise authorized by the court or the CADRES
Director.
(3) Mediation Fee. The
mediation fee is included in the small claims filing fee, and no additional fee
is required for mediation.
(4) Assignment of Mediators. The clerk of court, or a designee, shall
notify CADRES of all dates on which the Small Claims docket is to be scheduled,
as well as any subsequent scheduling changes. CADRES shall assign one or more mediators to provide
mediation services at every scheduled Small Claims docket. At least twice annually, CADRES shall
supply to every District Court a current list of Small Claims mediation
assignments, as well as a current list of mediators on the Small Claims
Mediation Roster.
(5) Continuances. All
requests for continuance of mediation or a hearing date shall be presented to
and ruled on by the court. A
mediator may not grant a continuance for mediation or a hearing date in a Small
Claims case.
(1) Referral to Mediation. All
requests for mediation of land use or natural gas pipeline matters pursuant to
5 M.R.S. ¤¤ 3341 or 3345 shall be referred to CADRES upon the filing of an
application with the Superior Court as required by 5 M.R.S. ¤¤ 3341(4) and
3345(4). The original application
will be docketed and retained by the clerk in an ÒSAÓ file, and a copy sent to
the CADRES Director. In addition
to these statutory land use matters, any case involving a land use dispute may
be referred to CADRES at the discretion of the court or on request of the
parties.
(2) Date and Location of Mediation. Once
the mediator is selected, the mediator shall assist the parties in arranging a
mutually agreeable date, time and location for mediation. The mediation may take place at a
courthouse, if space is available, and if authorized by the clerk.
(3) Mediation Fee. As
established by 5 M.R.S. ¤¤ 3341(2) and 3345(2), the fee for the initial land
use and natural gas pipeline mediation session is $175.00 for up to four (4) hours
of mediation, payable by the landowner who submits the application. Additionally, the CADRES Director shall
determine the cost of providing notice, if any, which the landowner shall pay
prior to the scheduling of mediation.
If subsequent mediation sessions occur, the parties and mediator shall
agree on an appropriate fee arrangement.
(4) Selection of Mediator. The parties shall choose their mediator
from the Land Use and Environmental Mediation Roster list provided by
CADRES. A list of mediators on the
Land Use and Environmental Mediation Roster shall be available to the public in
printed copy upon request and posted on the Judicial Branch website, where it
shall be updated at least twice annually.
(1) Referral. All
requests for mediation pursuant to 38 M.R.S. ¤ 347-A shall be referred to
CADRES upon the receipt of a request from a party.
(2) Mediation Fee. Pursuant to 38 M.R.S. ¤ 347-A, the fee
for environmental enforcement mediation is $120.00. If an action pursuant to Rule 80K is not already pending,
the additional applicable filing fee is required. Notwithstanding the general exemption for state agencies
from payment of fees, the State of Maine Department of Environmental Protection
(DEP) shall pay one-half of the fee and may pay the entire fee. The DEP is exempt from payment of any
filing fee.
(3) Selection of Mediator. The parties shall choose their mediator from a
Land Use and Environmental Mediation Roster provided by CADRES. A current listing of the mediators on
the Land Use and Environmental Mediation Roster shall be available to the
public in printed copy upon request and posted on the Judicial Branch website,
where it shall be updated at least twice annually.
(4)
Date and Location of Mediation. Once
the mediator is selected, the mediator shall assist the parties in arranging a
mutually agreeable date, time, and location for mediation. The mediation may take place at a
courthouse, if space is available, and if authorized by the clerk.
(f) Sanctions.
If
a party or partyÕs attorney fails to appear at mediation or other ADR process
scheduled pursuant to this Rule, or fails to comply with any other requirement
of this Rule or any court order issued pursuant to this rule, the court may,
upon motion of a party or on its own motion, order the parties to submit to
mediation or other ADR, dismiss the action or any part of the action, render a
decision or judgment by default, or impose any other sanction that is just and
appropriate in the circumstances.
In lieu of or in addition to any other sanction, the court shall require
the party or attorney, or both, to pay reasonable expenses, including attorney
fees, of the opposing party, and any fees and expenses of a neutral, incurred
by reason of the nonappearance, unless the court finds that an award would be
unjust in the circumstances.
Advisory Notes—May 2007
The
proposed addition of Rule 92 to the Maine Rules of Civil Procedure implements
the requirement of 4 M.R.S. ¤ 18-B(9) that the Supreme Judicial Court adopt
rules governing the referral of cases to the Court Alternative Dispute
Resolution Service (ÒCADRESÓ). It
also consolidates rules that formerly appeared in the Uniform Domestic
Relations Administrative Order (JB-00-05) and the Rules for Referral to CADRES,
and it provides the public with an initial point of reference to navigate
Alternative Dispute Resolution (ADR) options in the court system.
Rule
92 addresses mediation in general civil actions, family and domestic relations
matters, small claims cases, cases involving land use and natural gas pipeline
location issues, and Department of Environmental Protection enforcement
matters. The Rule includes a subdivision
(f) providing for sanctions for non-compliance with ADR rule requirements or
court orders implementing ADR requirements. Subdivision (f) does not limit a courtÕs inherent authority
to impose sanctions on misconduct or the courtÕs general authority to impose
sanctions pursuant to M.R. Civ. P. 11 or 66.
The
Rule is supported by conforming amendments to M.R. Civ. P. 80K and to Rule 5 of
the Maine Rules of Small Claims Procedure.