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