The State Bar Association of North Dakota Fall 2013 Gavel Magazine | Page 28

Mike Hagburg Attorney at Law Supreme Court to expand funded mediation program Effective January 1, 2014, North Dakota’s court funded mediation program will expand to include post-judgment mediation in family law and probate cases. New N.D. Rule of Appellate Procedure 5 provides details on how post-judgment mediation will ope rate. Under Rule 5(d)(1), “[a]ny party contemplating an appeal” in an eligible case may submit a request for post-judgment mediation to the Court’s mediation program administrator within 60 days after service of notice of entry of judgment or within seven days after service of a notice of appeal. Rule 5(d)(2) lists types of cases eligible for post-judgment mediation: divorce cases involving property or spousal support; any case involving parenting rights, except for termination of parental rights cases; any case involving residential responsibilities or support of minor children; any case involving grandparent visitation; and any case under the Uniform Probate Code or the Uniform Trust Code. The case types eligible for post-judgment mediation are essentially the same as those that have been eligible for court-funded family mediation since 2008, with the addition of probate cases. The members of the Joint Alternative Dispute Resolution Committee, which developed Rule 5, believed that mediation would be helpful in probate cases because these often stem from family disputes. Under Rule 5(d)(3), eligible cases will 26 be referred to post-judgment mediation on request of any party. If another party objects, the party may seek exemption from mediation, which can be granted if: the issues raised are limited to a question of law; prior post-judgment mediation has been attempted in an attempt to resolve substantially similar issues; or other good cause is shown. Post-judgment mediation is generally excluded in cases in which there is a protection order between the parties. Rule 5(d)(7) allows up to six court-funded hours of mediation if a case is accepted for post-judgment mediation. If parties need more time, they can purchase it from the mediator. Parties may be eligible for additional reduced fee or free mediation depending on their income. N.D. Rule of Court 8.9, which establishes a roster of alternative dispute resolution neutrals, has been amended to include standards for post-judgment domestic relations and estate mediators. Under Rule 5(e), mediators qualified as post-judgment mediators under Rule 8.9’s new provisions may be assigned to provide court-funded mediation. Assignment to post-judgment mediation does not toll the deadline for filing a notice of appeal and does not automatically toll deadlines for filing appellate briefs, although Rule 5(d)(6) does extend the deadline for ordering transcripts. Under Rule 5(d)(5), mediation must be completed within 45 days of the assignment of the post-judgment mediator. Meanwhile, the family mediation program that has been in place since 2008 will shed its pilot project status and become permanent under the framework set out in new N.D. Rule of Court 8.1. Supreme Court Administrative Order 17, which created the family mediation pilot project, will be repealed on January 1, 2014, and Rule 8.1 will be put in place to govern family mediation. A new Appendix I will be added to the Rules of Court to support the family mediation program, containing forms and supplements provided for the convenience of mediation program users. Over the course of the pilot project, court funded family mediation proved effective in helping parties resolve issues. A recent analysis of program data reveals that parties taking advantage of the program were able to resolve 51 percent of parenting time disputes through mediation. In addition, in 75 percent of mediations parties agree to address issues beyond parenting time and were able to resolve those other issues 42 percent of the time. Participating in family mediation seems to increase parties’ general satisfaction with the ultimate outcome of the process. In the South Central Judicial District, the average number of post-decree filings per case fell by 86 percent in cases mediated during the first year of the pilot project compared to cases filed the year before. In other districts where the program was used, the drop in post decree filings average approximately 50 percent. The Gavel Fall 2013