SUPREME COURT OF PUERTO RICO ALTERNATIVE DISPUTE RESOLUTION REGULATIONS

Transcription

1 SUPREME COURT OF PUERTO RICO ALTERNATIVE DISPUTE RESOLUTION REGULATIONS March 4, 2005 Amended

2 CONTENTS Page CHAPTER 1: GENERAL PROVISIONS Rule Statement of Public Policy 1 Rule Scope, purpose and interpretation of these Rules 1 Rule Definitions 1 CHAPTER 2: THE ALTERNATIVE DISPUTE RESOLUTION BUREAU Rule Creation of the Alternative Dispute Resolution Bureau 4 Rule Duties of the Alternative Dispute Resolution Bureau 4 CHAPTER 3: REFERRAL TO ALTERNATIVE DISPUTE RESOLUTION Rule Selection of cases for referral to alternative dispute resolution 6 Rule Referral of a pending controversy to an alternative dispute resolution method 6 Rule Appropriate time for referral of cases pending before the court 7 Rule Scope of the referral order 7 Rule Effect of the order for referral to mediation or neutral evaluation, and of the decision to submit to arbitration 8 Rule Deadline for completing the referral 8

3 Rule The role of attorneys in alternative dispute resolution 9 Rule The role of the Alternative Dispute Resolution Bureau in providing guidance 9 CHAPTER 4: NEUTRAL INTERVENORS Rule Appointment of neutral intervenors 10 Rule General duties of neutral intervenors 10 Rule Training of neutral intervenors 12 Rule Remuneration of neutral intervenors 12 Rule Challenge or disqualification of neutral intervenors 12 Rule Immunity 13 Rule Communications between neutral intervenors and the court 14 CHAPTER 5: ALTERNATIVE DISPUTE RESOLUTION AGREEMENTS Rule Agreements 15 Rule Effect of the agreement or settlement 15 CHAPTER 6: MISCELLANEOUS PROVISIONS Rule Confidentiality 16 Rule Privacy of the sessions 17

4 Rule Cases not covered by these rules 17 CHAPTER 7: MEDIATION Rule Definition and purposes of mediation 18 Rule Eligible cases 18 Rule Exclusions 19 Rule Referral to mediation 19 Rule Appointment of a mediator 19 Rule Qualifications, duties and ethical obligations of the mediator 20 Rule Impartiality of the mediator 20 Rule Authority or powers of the mediator 20 Rule Time and place of mediation 21 Rule Conclusion of mediation 22 Rule Communications with the court 23 Rule Participation of attorneys in the mediation process 24 CHAPTER 8: ARBITRATION Rule Purpose 25 Rule Eligible cases 25 Rule Exclusions 25 Rule Procedure for referring cases to arbitration 26 Rule Referral at request of the parties 26

5 Rule Effect of submission of a dispositive motion 27 Rule Qualifications and training of arbitrators 27 Rule Selection of arbitrators 28 Rule Arbitrator appointment orders; declining the appointment 29 Rule Jurisdiction of the arbitrator 29 Rule Powers of the arbitrator 30 Rule Protective orders 31 Rule Arbitration hearings 31 Rule Transcription or recording of proceedings 32 Rule Arbitration award; deadline for issuance 33 Rule Notice of the award 33 Rule Effect of the agreement to make the award binding 34 Rule Judgment 34 Rule Request for trial 34 Rule Revocation, modification or correction of the award 35 Rule Penalties 36 Rule Enforcement of judgment 36 CHAPTER 9: NEUTRAL EVALUATION Rule Purpose 37 Rule Eligible cases 37 Rule Procedure for referring cases 38

6 Rule Qualifications and duties of a neutral evaluator 38 Rule Appointment of the neutral evaluator 39 Rule Procedures prior to the Evaluation Session 40 Rule Evaluation sessions 41 Rule Disclosure of information related to the neutral evaluation process 42 Rule Court proceedings 42 CHAPTER 10: SEPARABILITY Rule Separability Clause 43 CHAPTER 11: EFFECTIVENESS Rule Effective Date 44

7 ALTERNATIVE DISPUTE RESOLUTION REGULATIONS CHAPTER 1: GENERAL PROVISIONS Rule Statement of Public Policy The Supreme Court of Puerto Rico declares that it is public policy of the Judicial Branch to use mechanisms complementary to the traditional adjudicative system in order to administer justice more effectively, quickly and economically. Rule Scope, purpose and interpretation of these Rules (a) The purpose of these regulations is to promote the development and use of alternative dispute resolution methods as a complement to the judicial system. (b) The rules shall apply to all civil and criminal cases referred to any public or private alternative dispute resolution services, as described herein. (c) Any alternative dispute resolution services provided by the Judicial Branch may use the provisions of these Regulations, where applicable, for the processing of cases in which the parties in conflict have directly requested their services. (d) These rules shall be interpreted in a way that ensures that disputes are resolved fairly and expeditiously. Rule Definitions (a) Alternative dispute resolution. Includes any formal or informal method, practice or technique other than traditional judicial adjudication used in or outside of the judicial system, with the aim of resolving disputes between citizens.

8 (b) Neutral intervenor. An impartial person who takes part in the alternative dispute resolution process in order to guide and assist the parties to settle their disputes. This person's duties vary depending on the alternative method concerned. (c) Mediation. A non-adjudicative intervention process whereby a neutral intervenor (mediator) assists parties in conflict to reach an agreement that is mutually acceptable to both. In mediation, the parties have the power to decide whether or not they wish to submit to the process. (d) Arbitration. An informal adjudicative process whereby a neutral intervenor (arbitrator) takes evidence from the parties in conflict and, on the basis of the evidence presented, issues a decision, or award. In arbitration, the parties have the power to decide whether or not they wish to submit to the process. The award issued may be one of two (2) kinds: (1) binding, whereby the award, by agreement between the parties, becomes compulsory for them; and (2) non-binding, whereby either party that disagrees with the award may request a full trial. (e) Neutral case evaluation. A process whereby each party presents a summary of their legal theories and of the evidence to the neutral intervenor (evaluator), based on which the legal validity of each party's position is assessed and this analysis is presented to the litigants. (f) Bureau. Bureau. Refers to the Alternative Dispute Resolution (g) Court. Refers to any instance of the General Court of Justice of Puerto Rico. (h) Roster or Bureau Roster. The Roster of Neutral Intervenors Certified by the Bureau. This is the list of private neutral mediators, arbitrators and evaluators certified by the Bureau, available to the Court, for parties to a case referred to alternative dispute

9 resolution or for any other person or entity interested in ADR.

10 CHAPTER 2: THE ALTERNATIVE DISPUTE RESOLUTION BUREAU Rule Creation of the Alternative Dispute Resolution Bureau The Alternative Dispute Resolution Bureau is hereby created, which shall be attached to the Office of the Chief Justice of the Supreme Court of Puerto Rico. The Bureau shall be administered by a Director, who shall be appointed by the Chief Justice. The position of Director of the Bureau shall be included in the Central Service. Rule Role of the Alternative Dispute Resolution Bureau The Alternative Dispute Resolution Bureau shall have, among others, the following responsibilities: (a) To implement the public policy of the Judicial Branch set forth in Rule 1.01 of these Regulations. (b) To serve as a resource for education and research on alternative dispute resolution. (c) To provide technical assistance to the Judicial Branch's alternative dispute resolution programs, services and centers. (d) intervenors. To provide training for the Judicial Branch's neutral (e) To certify private neutral intervenors interested in providing occasional services to the Judicial Branch and to the persons assigned thereto.

11 (f) To determine the continuing education requirements, if necessary, for private neutral intervenors in their respective areas. (g) To establish mechanisms for ongoing assessment of the Judicial Branch's alternative dispute resolution programs, services and centers in order to ensure their effective operation. These mechanisms shall include the compilation of statistics. (h) To establish mechanisms for the assessment and supervision of neutral intervenors employed by the Judicial Branch and of private neutral intervenors certified by the Bureau. (i) To provide guidance and training to its personnel, legal professionals, other professionals and the public on the availability and use of alternative dispute resolution services. (j) To approve standards manuals for the Judicial Branch's different alternative dispute resolution programs, services and centers. (k) To provide technical and administrative supervision of the Judicial Branch's conflict mediation centers and other alternative dispute resolution programs, services and centers established in the Judicial Branch. (l) To approve standards and procedures in order to ensure the effective provision of private alternative dispute resolution services.

12 CHAPTER 3: REFERRAL TO ALTERNATIVE DISPUTE RESOLUTION Rule Selection of cases for referral to alternative dispute resolution (a) When choosing cases to be referred to alternative dispute resolution, the court shall consider the following factors: (1) The nature of the case. (2) The nature of the relationship between the parties. (3) The willingness of the parties to negotiate. (4) The possibility that litigation may adversely affect the relationship. (5) The risks to the physical safety of the participants and of the neutral intervenor. (6) The need to provide emergency remedies prior to the referral. (7) The costs and risks of litigation. Rule Referral of a pending controversy to alternative dispute resolution (a) A court may refer a case, on its own initiative or at the request of one of the parties, to alternative dispute resolution provided by: (1) the Judicial Branch of Puerto Rico; (2) any state or federal government agency that provides these services; (3) any private entity that provides such services;

13 (4) a private neutral intervenor certified by the Bureau; or (5) a private neutral intervenor not certified by the Bureau, chosen by mutual agreement between the parties. (b) In every case that a court refers to alternative dispute resolution, the parties shall preferably choose neutral intervenors certified by the Bureau. (c) In every case that a court refers to alternative dispute resolution, it shall include in the referral order that the referral is made pursuant to these Regulations. Rule Appropriate time for referral of cases pending before the court (a) The court shall have discretion to determine the appropriate time to refer a case to alternative dispute resolution. (b) The referral may be made at any stage of the case. However, the court may deny a request for referral made by one of the parties if it determines that it would not benefit them or would delay the resolution of the case. Rule Scope of the referral order (a) The court may order the parties and their legal representatives to appear before the alternative dispute resolution method appropriate to their case, or to attend an orientation session at the Bureau. (b) In the case of an order to appear before the alternative dispute resolution, the order shall stipulate the following: (1) Mediation--that compliance with the order requires only that the parties attend an initial orientation session, and that they may decide whether to submit to the full mediation process.

14 (2) Neutral Case Evaluation--that the parties are required to participate in the process and to hear the assessment of the evaluator. (3) Arbitration--that the parties may decide whether to submit to the process. (c) In the case of an order to appear at an orientation session at the Bureau, the order shall stipulate the obligation of the parties and their attorneys to appear at the session. Rule Effect of the order for referral to mediation or neutral evaluation, and of the decision to submit to arbitration (a) When the court refers a case it is hearing to mediation, the parties shall be required to appear at the initial orientation session scheduled, under penalty of contempt. (b) When the court refers a case to neutral evaluation, the parties shall be required to participate in the whole process, under penalty of contempt. (c) When the court recommends that the parties submit to an arbitration process and the parties accept this recommendation, they must participate in the process through to its conclusion. Rule Deadline for completing the referral Any case that has been referred to alternative dispute resolution must be completed within sixty (60) days of the date of notice of the referral. The court may, on its own initiative or on motion made by a party, extend or shorten this term with due cause. Rule The role of attorneys in alternative dispute resolution

15 (a) Attorneys shall counsel their clients on the advantages of the use of alternative dispute resolution. (b) The criteria and conditions for the participation of attorneys in each alternative dispute resolution method are set forth in the specific chapters for each method. Rule The role of the Alternative Dispute Resolution Bureau in providing guidance Referrals to alternative dispute resolution may be channeled through the Bureau in order to provide the parties and their attorneys with guidance on the nature and scope of the alternative methods available. Guidance shall also be provided on the following topics, among others: the role of legal representatives and experts; the importance of participation of the parties in these processes; the Bureau Roster; questions regarding procedural aspects in the referral of a case to alternative dispute resolution shall also be clarified.

16 CHAPTER 4: NEUTRAL INTERVENORS Rule Appointment of neutral intervenors (a) In all cases referred to an alternative dispute resolution center, program or service of the Judicial Branch, the neutral intervenor shall be appointed in accordance with the regulations and internal rules adopted by the Bureau. In all other cases, the parties shall agree on a neutral intervenor selected from the Bureau Roster, in accordance with the procedures set forth in the chapters for each method. (b) In the absence of an agreement between the parties, the court shall appoint a neutral intervenor, preferably from the Bureau Roster. In appropriate circumstances, the court, with the consent of the parties, may appoint a neutral intervenor who is not certified by the Bureau, because it believes that the person has sufficient training or experience to guide the alternative process to which the parties have been referred. (c) Any appointment must take into account the standards and norms set forth in Rule 4.02 aimed at preventing conflicts of interest or the appearance thereof. The court shall make appropriate inquiries with the parties to ensure this is achieved. Rule General duties of neutral intervenors A neutral intervenor must: (a) Provide the parties with appropriate information on the nature, limitations and benefits of the service. (b) Encourage and help the parties to reach an agreement.

17 (c) Comply fully with the confidentiality provisions set forth in these regulations. (d) Refrain from using the information disclosed during an alternative dispute resolution process for his/her own benefit, or using the outcome of his/her intervention for publicity or recognition. (e) Maintain an impartial position toward all the parties involved in the conflict and avoid the appearance of bias. (f) Refrain from acting as a neutral intervenor in any dispute in which his/her participation would constitute a conflict of interest or in which there would be a perception of a conflict of interest. If after beginning his/her work as an intervenor circumstances arise that entail a conflict of interest or that lead him/her to believe such a conflict exists, he/she must immediately withdraw from the case. (g) Disclose to the participants any personal or professional circumstance that may create the appearance of a conflict of interest or generate doubts about his/her impartiality. This obligation shall be ongoing. (h) Make no misrepresentations about the costs, benefits or potential results of the use of the alternative dispute resolution method or about his/her professional qualifications. (i) Take the alternative dispute resolution continuing education courses required to maintain his/her certification as an intervenor, and the appropriate training in legal proceedings. (j) Include the Bureau in any notification about his/her acceptance or rejection of an appointment as neutral intervenor. (k) Notify the Bureau of the final decision of his/her intervention in all cases referred to him/her pursuant to these Regulations, in accordance with the notification procedure adopted by the Bureau for such cases. Rule Training of neutral intervenors

18 (a) To act as a neutral intervenor pursuant to these regulations, the neutral intervenor must have met all requirements and completed all training as determined by the Bureau. The training shall include but not be limited to the substantive and procedural aspects of alternative dispute resolution methods, as well as the theoretical and practical components of the particular method that the neutral intervenor will be using. (b) The Bureau shall establish the necessary requirements for the continuing education that intervenors must complete to maintain their certification. Rule Remuneration of neutral intervenors (a) When the court refers a dispute to a neutral intervenor selected from the Bureau Roster or when the parties choose one, the remuneration or form or payment shall be agreed by the parties and the neutral intervenor. This agreement shall be in writing and signed by the parties prior to beginning the proceedings. The agreement shall include, at least, the terms related to the cost, duration and form of payment of the services. (b) The neutral intervenor shall not accept any commission, royalty or any other form of payment that has not been previously agreed with all of the parties. Rule Challenge or disqualification of neutral intervenors (a) Criteria. By his/her own initiative or in response to a challenge submitted by one of the parties, a neutral intervenor must be inhibited from acting in an alternative dispute resolution in any of the following situations: (1) When he/she has an interest in the outcome of the case or has a personal bias or partiality toward either of the parties, or toward their attorneys, if applicable.

19 (2) When he/she is related by blood or marriage within the fourth degree of consanguinity or affinity to either of the parties or their attorneys, if applicable. (3) When he/she has worked as an attorney, expert or professional assistant for either of the parties. (4) When a friendship exists between the neutral intervenor and either of the parties or their attorneys, if applicable, of a nature that could frustrate the ends of justice. (5) When there is any other factor that might reasonably cast doubt on his/her impartiality or undermine public confidence in the justice system. (b) Procedure. Any challenge must set forth the facts on which it is based and must be submitted as soon as the petitioner becomes aware of the grounds. In the event that a neutral intervenor is disqualified or if either of the parties submits a challenge, the neutral intervenor must suspend the hearing and return the case to the judge that referred it to him/her. (1) If the parties have chosen alternative dispute resolution on their own initiative, without the intervention of the court, the neutral intervenor shall refer the parties to the Bureau, where they will be provided with the Roster, from which they shall choose another intervenor by mutual agreement. Rule Immunity (a) Neutral intervenors certified by the Bureau who are in good standing with their certification shall, solely for their intervention in cases referred pursuant to these Regulations, have the same immunity against civil claims as that recognized for judges of the General Court of Justice for any acts or omissions committed in the performance of their duties as intervenors.

20 (b) Neutral intervenors attached to any alternative dispute resolution programs, centers or services of the Judicial Branch shall have the same immunity against civil claims as that recognized for judges of the General Court of Justice for any acts or omissions committed in the performance of their duties as intervenors. (c) This rule shall not apply if the intervenor commits fraud or deceit in the performance of his/her duties. Rule Communications between neutral intervenors and the court By means of a motion, the neutral intervenor shall notify the judge who referred the case to him/her of the following: (a) The failure of either party to appear at the initial session in the process; (b) Whether or not the case is suitable for the service; (c) Any request for additional time to complete an alternative dispute resolution agreement or process; (d) Any request by the parties for the court to issue a provisional court order or measure that would facilitate the service; (e) The inability of the parties to reach an agreement or to conclude the process by any of the alternative methods; or (f) Whether an agreement has been reached between the parties and, if applicable, the terms of the agreement.

21 CHAPTER 5: ALTERNATIVE DISPUTE RESOLUTION AGREEMENTS Rule Agreements (a) All agreements made in an alternative dispute resolution must be placed in writing. (b) When the parties reach an agreement or settlement in an alternative dispute resolution process, or as a result thereof, they shall inform the court of this fact in writing. (c) The court must be notified in writing of the specific terms of the agreements, unless the parties agree otherwise. Notwithstanding the foregoing, when the matter in dispute is of great public interest, the parties shall be required to disclose the content of the agreement or settlement to the court. If the agreement or settlement affects the welfare or rights of children or disabled persons, the process stipulated by law shall be followed. Rule Effect of the agreement or settlement (a) If the parties sign an agreement that resolves the dispute, that agreement shall have the same force upon the parties, their heirs or successors as any other written contract. (b) If the parties sign an agreement or settlement and disclose the terms thereof to the court, the court shall include these terms in the judgment of the case. (c) If the agreement brings an end to the litigation and the parties have agreed not to disclose its content, they shall inform the court of this so that it may enter a judgment closing the case.

22 CHAPTER 6: MISCELLANEOUS PROVISIONS Rule Confidentiality (a) The information offered by the participants in a mediation, arbitration or neutral evaluation process shall be confidential and privileged, as shall be all of the documents and work files at the office of the mediator, arbitrator or evaluator. Such information or documentation may not be requested in judicial, administrative or arbitration proceedings, nor may the neutral intervenor be ordered to discuss its content or the proceedings conducted before him/her. (b) Each party to an alternative dispute resolution shall maintain the confidentiality of the information received during the process. Opinions, suggestions or admissions made by any participant in relation to possible agreements during the mediation sessions may not be presented as evidence in judicial, administrative or arbitration proceedings; nor may proposals, opinions or recommendations offered by the neutral intervenor, nor the fact that any participant has or has not accepted an agreement suggestion. Notwithstanding the foregoing, the parties and the neutral intervenor may disclose information shared in the alternative dispute resolution process provided they have the written consent of all the parties involved. (c) If either of the parties or their attorneys disclose all or part of the information offered in the alternative dispute resolution process without written authorization, the court may impose any penalties upon them that it deems appropriate. (d) This rule shall not apply to cases where there is an obligation to report the existence or suspicion of abuse or negligence against a child or to information on a plan or intention to commit a crime that would endanger the physical safety of third parties, the participants or the neutral intervenor. At the beginning of the process the participants shall be advised on this point. Rule Privacy of the sessions

23 The sessions in any alternative dispute resolution proceeding are private. The participation of persons unrelated to the dispute shall be subject to the consent of the parties and the neutral intervenor. Rule Cases not covered by these rules The Bureau shall regulate any case for which these Regulations provide no specific measure or procedure.

24 CHAPTER 7: MEDIATION Rule Definition and purposes of mediation (a) Mediation is a non-adversarial alternative for dealing with disputes. It is a faster, more informal process than court proceedings that allows the parties, with the intervention of an impartial facilitator called a mediator, to explore all the possible options in order to reach an agreement that is mutually acceptable to both and that brings an end to the dispute. (b) The purpose of mediation is to promote the participation of individuals in the resolution of their disputes and to ensure that the parties involved assume responsibility for the fulfillment of the agreements. The parties have the power to decide whether or not they wish to submit to this process. Rule Eligible cases (a) All civil cases and misdemeanor cases that can be settled out of court according to the Rules of Criminal Procedure shall be eligible for mediation. (b) In cases pending before the court, the court shall determine whether a case is suitable for referral to mediation. The Court may also accept requests from the parties for a case to be referred to mediation. However, the mediator to whom the case is assigned shall have discretion to determine whether it is suitable for handling in the mediation process. (c) When choosing cases to be referred to mediation, the court shall use the criteria set forth in Rules 3.01 and 3.02 of these Regulations.

25 Rule Exclusions The following types of cases shall not be referred to, nor handled in mediation: (a) criminal cases that cannot be settled out of court according to the Rules of Criminal Procedure; (b) cases involving a civil rights claim or matters of great public interest, except with the express consent of the parties, their legal representatives and the court; or (c) cases in which one party is not capable of effectively defending his/her interests in the negotiation process. Rule Referral to mediation (a) The court may refer any case it is hearing, or a part thereof, to mediation, either on its own initiative or at the request of one of the parties. Rule Appointment of a mediator (a) When the court refers a case to a Conflict Mediation Center, or to an alternative dispute resolution program or service of the Judicial Branch, the mediator shall be appointed in accordance with the procedures established by the Bureau. (b) In all other cases, the parties may choose the mediator by mutual agreement within fifteen (15) days of the referral of the case to mediation, in one of the following ways: (1) preferably, by choosing one from the Bureau Roster; or (2) with the consent of the Court, by choosing any person or public or private entity that provides mediation services, even if they are not included in the Bureau Roster.

26 If the parties cannot reach an agreement, the court shall appoint the mediator or entity that will provide these services from the Bureau Roster, taking into account the criteria set forth in Rules 3.02, 4.01 and 4.02 of these Regulations. Rule Qualifications, duties and ethical obligations of the mediator The mediator must meet the qualifications and fulfill the duties and ethical obligations set forth in these regulations and those established by the Bureau, and any other regulations approved by the Judicial Branch related to the qualifications, duties and ethical obligations of neutral intervenors. Rule Impartiality of the mediator The mediator shall maintain an image of impartiality and shall act accordingly with the parties involved in the dispute. He/she shall assist all parties equally and reach a mutually satisfactory agreement without advocating for the interests of one of the parties in the dispute resolution process. Rule Authority or powers of the mediator (a) The mediator shall have the authority to: (1) hold joint or separate meetings (caucuses) with the participants; (2) make verbal recommendations on possible agreements; (3) obtain advice from other experts with respect to technical aspects of the dispute, on his/her own initiative or at the request of one of the parties, and demand payment for their services provided that he/she consults with the parties prior to hiring such services;

27 (4) maintain order in the mediation process and demand compliance by the participants with the rules of mediation accepted by them at the beginning of the process; (5) stipulate the procedural rules deemed appropriate to facilitate the achievement of the objectives of mediation; (6) postpone sessions as deemed appropriate or necessary, taking into account the interests of the parties; and (7) terminate the mediation at any time. (b) The mediator does not have the authority to compel the parties in dispute to reach a particular agreement. Rule Time and place of mediation (a) Initial summons All cases referred to mediation shall be summoned promptly to an orientation session in order to fulfill the objective of these Regulations to achieve a prompt settlement of disputes. (b) Orientation session At the orientation session, the mediator shall comply at least with the following: (1) inform the participants that the process is voluntary and that he/she is an impartial facilitator who does not have the authority to impose agreements; (2) explain that he/she will not be representing or advising either of the participants;

28 (3) define and describe mediation services and their privileged and confidential nature; (4) define and describe the nature and scope of the confidentiality and the privileged nature of the sessions; (5) help the participants to assess the benefits, risks and costs of mediation; (6) disclose the nature and degree of relationship with either of the parties and any personal, financial or other interest that could result in bias or a conflict of interest, and (7) advise the participants of their right to seek and obtain independent legal advice if they do not already have it. Rule Conclusion of mediation (a) The mediation process may be terminated at any time, by either of the parties involved or by the mediator. (b) Once the parties have agreed to the mediation process, it may be concluded for any of the following reasons: (1) the parties have reached an agreement; (2) the parties have not reached an agreement; (3) one of the parties failed to attend the hearing; (4) one or both parties withdrew from the process; (5) the period of time granted by the court for mediation has ended and the parties did not request an extension or, if requested, it was not granted; or (6) in the opinion of the mediator, the process is not proving beneficial.

29 (c) The termination of mediation at any stage of a case shall not prevent the case from being referred to this process again if the circumstances are favorable. Rule Communications with the court (a) In cases referred by the court, the mediator, after terminating the mediation, shall inform the court in writing of the following: (1) Whether the parties reached an agreement. (2) Whether one or both parties failed to attend the orientation session; in this case, the name of the party or parties who failed to appear will be specified. (3) Whether one of the parties failed to attend any of the other mediation sessions, after having attended the orientation session; in this case, which party or parties failed to attend will not be specified. (4) Whether the term granted by the court has expired. (5) If one or both parties withdrew from mediation; in this case, which party or parties withdrew from mediation will not be specified. (6) Whether, in the opinion of the mediator, the process is not proving beneficial. (b) It shall be the responsibility of the parties to inform the court of the agreement using the criteria set forth in Rule 5.01 of these Regulations.

30 Rule Participation of attorneys in the mediation process (a) Interview and orientation session The parties may be accompanied by their attorneys during the initial interview and at the orientation session held separately with each party in mediation. (b) Joint sessions The participation of attorneys in the joint sessions shall be permitted with the consent of the parties and the mediator. If the participation of attorneys is accepted in the joint sessions, the mediator shall order that each party be so represented, and the attorneys shall be subject to the same rules that apply to the parties. (c) The role of attorneys in the joint mediation sessions must be limited to providing their clients with advice and information, clarifying doubts and making suggestions with respect to the different solutions.

31 CHAPTER 8: ARBITRATION Rule Purpose (a) The purpose of arbitration is to provide the parties with the opportunity to present their version of events, legal theories and evidence within a faster and more informal adjudicative process than a court proceeding. This process ends with the issuance of an award resolving all the disputes and matters submitted to the arbitrator. The parties have the power to decide whether or not they wish to submit to this process. (b) The procedure described in these rules does not affect the validity and scope of application of Puerto Rico's Commercial Arbitration Law. (c) None of the provisions in this Chapter 8 limits or undermines the power of the court to appoint a Commissioner, in accordance with Rule 41 of the Rules of Civil Procedure, 32 L.P.R.A. R.41. Rule Eligible cases Any civil actions not excluded in these rules shall be eligible for arbitration. Rule Exclusions (a) Cases belonging to the following categories shall not be referred to arbitration: (1) Criminal cases. Act. (2) Actions brought under the Puerto Rico Minors' (3) Violations of criminal municipal ordinances. (4) Writs of habeas corpus.

32 (5) Remedies under the Special Legal Proceedings Act and the Extraordinary Remedies Act that require expeditious attention and resolution. (6) Cases in which one of the parties is currently being held in a penal institution. (7) Cases involving a civil rights claim. (b) The court shall have discretion to exclude any case that does not belong to any of the categories listed in subsection (a) of this rule when it judges that the nature of the case, the complexity of the disputes or any other circumstances make it inappropriate for arbitration. Rule Procedure for referring cases to arbitration (a) The court, in exercise of its discretion and taking into account the nature of the case, its specific circumstances and the likelihood that arbitration will prove effective in achieving a prompt settlement of the dispute, may recommend that the parties submit their dispute to arbitration. (b) If the parties accept the court's recommendation, they shall inform the court in writing within five (5) days of the date on which the referral to arbitration was recommended. Rule Referral at request of the parties (a) Any party to a civil action pending before the court may request, by means of a motion to the effect, that their case be referred to the arbitration process regulated by this Chapter. (b) When there is no opposition to the request for referral or when it is submitted by both parties by mutual agreement, the court shall refer the case unless it falls into one of the categories excluded by these rules or the court finds that the disputes are not suitable for arbitration. If either of the parties to the suit oppose the request, the case shall continue to be heard in court.

33 (c) The provisions and procedures established in this Chapter shall apply to all cases that are referred to arbitration pursuant to this rule. Rule Effect of submission of a dispositive motion (a) The submission of a motion for dismissal, withdrawal, summary judgment or judgment on the pleadings prior to the date set for the initial arbitration hearing shall suspend the arbitration process until the court rules on the arguments set forth in the motion. Any party submitting a motion of this kind must serve the arbitrator with a copy thereof. Moreover, said party shall notify the arbitrator of any ruling or decision of the court in relation to the motion. (b) The court shall not consider any of the motions listed in subsection (a) of this rule that is submitted after the initial arbitration hearing has been held. Rule Qualifications and training of arbitrators (a) The arbitration process shall be directed by an arbitrator who must meet the requirements set forth in this rule. Alternatively, the parties may agree to submit their case to a panel comprised of three (3) arbitrators. (b) The role of arbitrator may be performed by any attorney or other professional of recognized competence who meets the requirements established in Rule 4.03 of these Regulations. The Bureau shall prepare and maintain a Roster of private arbitrators certified by the Bureau who are interested in providing occasional services to the Judicial Branch. (c) Notwithstanding the provisions of the previous subsection, the court may appoint, or the parties may agree to submit their case to, an arbitrator who is not admitted to practice law when the case involves technical or highly specialized disputes and the intervention of an expert in the field concerned may prove more productive than that of an attorney.

34 (d) Any attorney interested in qualifying to act as an arbitrator must comply with the provisions of Rule Rule Selection of arbitrators (a) When the parties decide to submit their case to an arbitration process, the arbitrator shall preferably be chosen from the Bureau Roster. (b) With the consent of the court, the parties may, by mutual agreement, choose any person to act as arbitrator even if that person does not appear in the Bureau Roster. (c) When the court has recommended that a case be referred to arbitration and the parties have accepted the recommendation, they must inform the court of the name of the candidate or candidates chosen within ten (10) days of having notified the court of their decision to submit the case to arbitration. (d) When the parties themselves have requested arbitration, they must inform the court of the candidate or candidates chosen within ten (10) days of the notice of the decision whereby the court approved the requested referral. (e) If the parties are not able to reach an agreement, the court shall examine the Bureau Roster and prepare a list with a subgroup of candidates who, in its opinion, are best qualified to intervene in the case. The number of candidates included in this subgroup shall be determined taking into account the number of parties in the case and whether a single arbitrator or a panel will be intervening. The list prepared by the court shall be submitted for consideration by the parties, each of whom shall simultaneously and secretly eliminate a candidate. If the parties eliminate the same candidate or if for any reason after completing the eliminations there are more eligible candidates than the number needed to participate in the case, the court shall make the final selection.

35 Rule Arbitrator appointment orders; declining the appointment (a) In all cases, once an arbitrator has been selected the court shall issue an order that officially appoints the arbitrator or panel of arbitrators selected to intervene in the case. Notice of this order shall be served immediately on the arbitrator or arbitrators and on the parties. The parties shall have ten (10) days as of the acceptance of the appointment by the arbitrator or arbitrators to inform the court in writing whether they have agreed that the arbitrator's award will be binding and whether they have agreed that the award will be in accordance with law or in accordance with equity. (b) If the candidate or one of the candidates appointed is not available or willing to act as arbitrator in the case, said candidate must inform the court thereof within ten (10) days of the filing of a copy of the notice of the appointment order in the court record. In such a case, the selection process shall begin again. Rule Jurisdiction of the arbitrator (a) The arbitrator shall have jurisdiction over all of the matters and disputes put forward in the case he/she is hearing and must resolve them in their entirety. (b) However, if the parties choose an arbitrator or panel of arbitrators who are not admitted to practice law, the court shall issue an order that specifically delimits the disputes that may be resolved in the arbitration process. Notice of this order shall be served on the arbitrator or panel of arbitrators and on the parties. In such cases, the arbitrator or panel of arbitrators shall not have jurisdiction over any matter that is not expressly defined in the order. Rule Powers of the arbitrator

36 (a) In any case being heard by an arbitrator or panel of arbitrators, he/she/they may: (1) set the date, time and place for arbitration hearings; (2) notify the parties of the scheduling of hearings; (3) hold and direct arbitration hearings; (4) issue subpoenas summoning witnesses; (5) take oaths and affirmations; (6) issue and record any written instructions and orders necessary to process the case being heard in the most efficient, orderly and prompt manner possible; (7) impose penalties on the parties for failure to appear at arbitration hearings; (8) in situations where the arbitrator is an attorney, intervene in and resolve issues related to discovery of evidence raised by the parties in the proceedings, and order the production or discovery of additional evidence; and (9) issue awards. (b) Subpoenas shall be issued by the Clerk of the Court of First Instance, shall bear the signature of the Clerk and the seal of the court, and shall be deemed to be court summons for all legal purposes.

37 Rule Protective orders (a) Notwithstanding the provisions in Rule 8.11(a)(8) of this Chapter, discovery of evidence in the arbitration process shall be subject to the oversight of the court at all times. Any party who is not in agreement with any determination by the arbitrator or the panel of arbitrators in relation with discovery of evidence may submit a motion to the court requesting a protective order. (b) The court may, with just cause, issue any order to protect against harassment, annoyance or oppression, or against any undue hardship or expense for the party requesting its intervention. To this end, the court may take any of the measures provided in the Rules of Civil Procedure. If the motion requesting a protective order pursuant to this rule is denied fully or in part, the court shall order the petitioner to comply with the orders or stipulations of the arbitrator under those terms and conditions that are fair and reasonable. Rule Arbitration hearings (a) The initial arbitration hearing must be held within thirty (30) days of service of notice of the order appointing the arbitrator or panel of arbitrators. The arbitrator shall set the date, time and place for the hearing and shall duly notify the parties in writing. (b) The parties shall submit a brief in which they identify all the documentary, material and testimonial evidence that they propose to present at the hearing, at least seven (7) days before the date scheduled for the hearing. This brief must be served on all the parties to the case. The arbitrator may reject as evidence any exhibit or testimony that has not been included in the brief. (c) The proceedings before the arbitrator or panel of arbitrators shall be conducted informally. The facts, disputes and legal theories of the case shall be presented mainly through the arguments of the attorneys of the parties and the documentary or material evidence.

38 (d) The presentation of testimonial evidence at arbitration hearings should be used as little as possible. Before testifying, all witnesses shall state their intention to tell the truth by means of an oath, affirmation or any other manner which, in the opinion of the arbitrator or panel of arbitrators, will compel the witness to tell the truth. A witness who breaks his/her oath or affirmation shall be guilty of perjury pursuant to the applicable provisions of the Criminal Code of Puerto Rico. The parties shall have the right to cross-examine any witnesses testifying in the proceedings. (e) The Rules of Evidence Law may be used as guidelines in arbitration hearings, but shall be applied flexibly. However, the rules on privilege shall be strictly applied. (f) The failure of either of the parties to appear shall not be grounds to suspend an arbitration hearing. The arbitrator or panel of arbitrators may issue the award based on a statement under oath of the grounds on which the appearing party supports his/her position, on affidavits or on any other evidence which, in the opinion of the arbitrator or panel of arbitrators, is sufficient to demonstrate the merits of the position of that party. The arbitrator or panel of arbitrators shall have discretion to request evidence in addition to that provided by the appearing party if it is deemed that a particular fact or matter has not been duly proved. Rule Transcription or recording of proceedings (a) Either of the parties may, at their own expense, record or transcribe the proceedings conducted before the arbitrator or panel of arbitrators. (b) In the absence of a stipulation, no part of a transcription or recording of the proceedings may be admitted as evidence in a full court trial, except in criminal proceedings for perjury. (c) The parties may, by written agreement and for any purpose, stipulate the admissibility of the transcriptions or recordings as evidence in a full court trial.

39 Any agreement or stipulation of this kind must be submitted to the court and shall be signed by the parties or their attorneys. Rule Arbitration award; deadline for issuance (a) Once the arbitration proceedings have been completed, the arbitrator or panel of arbitrators shall issue a decision by means of an award. In the absence of an agreement or stipulation, the award may be issued in accordance with equity. The award shall be brief and concise, stating clearly the remedies granted to the prevailing party, and shall be signed by the arbitrator, or by two (2) of the arbitrators if the case was heard by a panel. It shall not be necessary for the award to include findings of fact and conclusions of law. (b) The arbitration award must be issued within thirty (30) days of the date of the last arbitration hearing. The parties may shorten or extend this term by written agreement. Rule Notice of the award (a) In cases where it has been agreed that the award will be non-binding, the arbitrator shall serve notice of the award to the parties by certified mail or a similar personal delivery service with return receipt and shall forward a copy of the award to the Bureau in a sealed envelope. This envelope will be filed at the Bureau for twenty (20) days after service of notice on the parties. (b) In cases where it has been agreed that the award will be binding, the arbitrator shall forward the award immediately to the parties and to the court by mail or by a personal delivery service.

40 Rule Effect of the agreement to make the award binding In cases where it has been agreed that the award will be binding, neither party may request a full trial. However, the award may be revoked, amended or corrected in accordance with the provisions of Rule 8.20 of these Regulations. Rule Judgment (a) If the parties have agreed that the award will be binding, the Clerk of the court shall attach the award to the case file and forward it to the judge, who shall enter a judgment in accordance with its terms. (b) If the parties have agreed that the award will not be binding and no request for a full trial is submitted within the jurisdictional term of twenty (20) days established in Rule 8.19(a), the prevailing party shall file a motion informing the court of this situation and requesting that the Bureau be ordered to forward the envelope containing the award to the Clerk of the court. (a) The Clerk of the court shall attach the award to the case file and forward it to the judge, who shall admit it and enter a judgment in accordance with its terms. This judgment shall have the same force and effect as a judgment entered in court proceedings, but shall under no circumstances be reviewable by the Court of Appeals. Rule Request for trial (a) Unless the parties have agreed that the award will be binding, either party who is not satisfied with the decision of the arbitrator or panel of arbitrators may submit a motion to the court requesting the resumption of the proceedings within the jurisdictional deadline of twenty (20) days after service of notice of the award. If requested by the aforesaid deadline, the case shall be placed on the court schedule and shall continue to be processed as if it had not been referred to arbitration.