ALTERNATIVE DISPUTE RESOLUTION PROGRAM RULES FOR THE SUPERIOR, STATE, PROBATE, MAGISTRATE & JUVENILE COURTS OF FULTON COUNTY, GEORGIA

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1 ALTERNATIVE DISPUTE RESOLUTION PROGRAM RULES FOR THE SUPERIOR, STATE, PROBATE, MAGISTRATE & JUVENILE COURTS OF FULTON COUNTY, GEORGIA Adopted and Approved by the Board of Trustees of the Fulton County Fund for the Administration of Alternative Dispute Resolution Program Revised 1997 Reprinted

2 Alternative Dispute Resolution Program Rules for the Superior, State, Probate, Magistrate and Juvenile Courts of Fulton County, Georgia Adopted by the Board of Trustees of the Fulton County Fund for the Administration of Alternative Dispute Resolution Programs The Following rules and procedures have been approved by the Georgia Commission on Dispute Resolution. Elizabeth E. Long, Chief Judge Superior Court of Fulton County Chairman Albert L. Thompson, Chief Judge State Court of Fulton County Floyd E. Propst, Judge Probate Court of Fulton County Juanita Hicks, Clerk Superior Court of Fulton County Joann Bayneum, Chief Magistrate Magistrate Court of Fulton County Sanford J. Jones, Chief Judge Juvenile Court of Fulton County Terrence Lee Croft, Esq. Atlanta Bar Association TABLE OF CONTENTS 2

3 I. Preamble... 1 II. Definitions... 2 III. Rules... 4 PREAMBLE 3

4 The use of Alternative Dispute Resolution (ADR) procedures by litigants in Fulton County is strongly encouraged. These ADR procedures include neutral case evaluation (NCE), mediation and arbitration (both binding and non-binding). The adoption of these rules is not intended to prohibit rules of individual courts which are not in conflict with these rules. DEFINITIONS 1. Arbitration. Arbitration is the hearing and determination of a case in controversy by an 4

5 arbitrator, the person chosen by the parties or by appointment to settle the differences. Arbitration differs from mediation in that an arbitrator or panel of arbitrators renders a decision after hearing an abbreviated version of the evidence. After non-binding arbitration, any party may demand a trial within a specified period following the entry of the arbitration award. Nonbinding arbitration as provided by Local Rule 1000 of the Superior Court of Fulton County is available; however, the parties may agree to binding arbitration under that procedure, or otherwise as provided by law or the agreement of the parties. 2. Mediation. Mediation is a process in which a neutral facilitates settlement discussions between parties. The neutral has no authority to make a decision or impose a settlement upon the parties. The neutral attempts to focus the attention of the parties upon their needs and interests rather than upon rights and positions. Any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation. 3. Neutral. The term neutral refers to an impartial person or agency that facilitates discussions and dispute resolution between disputants in mediation, neutral case evaluation and arbitration. 4. Neutral Case Evaluation. Neutral Case Evaluation is a process in which a lawyer with expertise in the subject matter of the litigation acts as neutral evaluator of the case. Each party presents a summary of its legal theories and evidence. The evaluator assesses the strength of each party s case and assists the parties in narrowing the legal and factual issues in the case. Often, this conference occurs early in the discovery process and may also streamline discovery and other pretrial aspects of the case. The neutral case evaluation may also provide a basis for settlement discussions and actually result in a voluntary settlement of the case. 5. Party. Reference to a party includes counsel of the party, if represented by counsel. 1. Referral to an ADR Procedure. RULES 5

6 1.1 At any time, upon motion by any party, by consent of all parties, or sua sponte by the court, the parties in any civil, criminal or juvenile matter may be ordered to utilize any ADR procedure (except that binding arbitration may only be ordered upon the consent of all parties). 2. Timing of ADR Procedure. 2.1 The parties may be ordered to utilize and attend one or more ADR procedures; however, an order mandating attendance may require settlement or acceptance of an arbitration award. 3. Exemption from ADR Procedures. 3.1 Any party may move the court to have the matter removed from any particular ADR procedure or all ADR procedures. Any party may move the court to order the case to an ADR procedure other than the procedure or procedures to which it has been ordered. The court has full discretion in determining whether to grant such requests. 3.2 Attorneys of record should never be excluded from any ADR Procedure, although it is not improper for a mediator to request to consult privately with any party or any attorney during a mediation procedure. Appointment of Neutrals. 4.1 The parties, by agreement, may select their own neutrals, so long as their selection is made in good faith. The parties are encouraged to attempt to agree upon the selection of the neutral and the selection of the ADR procedure or procedures to be utilized. However, absent timely agreement by the parties in the selection of the neutral, the court, or its designee, will select the neutral. 4.2 Any party may move for an order disqualifying a neutral for good cause. 5. Qualification of Neutrals. 5.1 All neutrals selected by the court or its designee must be registered by the Georgia Office of Dispute Resolution. 6

7 6. Compensation of Neutrals. 6.1 If the parties select their own neutral by agreement, then the parties are responsible for providing the necessary compensation for the neutral they have selected. If the neutral is selected by the court, then the compensation of the neutral will be determined by the court and paid from the funds set aside for the Alternative Dispute Resolution Program of the court, or as otherwise directed by the court. 7. Immunity. 7.1 No neutral may be held liable for civil damages for any statement, action, omission or decision made in the course of any ADR procedure unless that statement, action, omission or decision is grossly negligent and made with malice, or is in willful disregard of the safety or property of any party to the ADR procedure. 8. Confidentiality. 8.1 In case evaluation and mediation, any statement made pursuant to these rules is confidential, not subject to disclosure, and may not be disclosed by the neutral, and may not be used in evidence in any subsequent administrative or judicial proceeding. Any document or other evidence generated in connection with such an ADR proceeding is not subject to discovery However, any agreement resulting from such an ADR procedure is not immune from discovery, unless all parties to the proceeding so agree in writing. Notwithstanding the foregoing, any otherwise discoverable material is not rendered immune from discovery by use in an ADR procedure. 8.3 No neutral may be required to testify concerning an ADR procedure and the neutral s notes or other records are not subject to discovery. Notwithstanding the foregoing, evidence may be admitted from a neutral with regard to the existence of an agreement reached in the ADR procedure involving the neutral. Moreover, confidentiality does not extend to any actual or threatened violence which occurs during an ADR procedure. Confidentiality does not extend to documents or communications relevant to legal claims 7

8 brought against a neutral or an ADR program or arising out of an ADR procedure 9. Appearance 9.1 The appearance of all parties or their attorneys is required by the court at non-binding arbitration hearings. The appearance of all parties and their attorneys is required at case evaluation or early neutral evaluation conferences. The appearance of all parties is required at mediation conferences. Additionally, the presence of a representative with authority to settle without further consultation (except by an immediate telephone consultation) is required by the court, particularly where the decision to settle involves any entity other than a party. Appearance by telephone may be permitted for nonresident parties. 10. Sanctions for Failing to Appear Failure to appear as required by the court may subject those absent to a citation for contempt and the imposition of sanctions permitted by law, including dismissal or entry of judgment after notice to the non-attending party and failure by that party to show good cause for failure to appear. 11. Communications Between the Neutral and the Parties Except in mediation, the parties and their attorneys are not permitted to engage in ex parte communications with the neutral, prior to the conclusion of the ADR procedure, regarding the substance of dispute to be resolved. However, in non-binding arbitration, no such communication is permitted until 31 days after the posting of the award. 12. Communication with the Court In order to preserve the objectivity of the court and the neutrality of the neutral, there should be no communication between the neutral and the court unless it is in writing with copies to the parties or their attorneys, or through the ADR program administrator. It is recognized that the neutral may need to communicate in writing or through the ADR program administrator that the case has settled or has not settled or regarding the failure of a party to attend. With the consent of the parties, the neutral may communicate to the court the neutral s assessment that the case is inappropriate for ADR or the particular 8

9 ADR procedure ordered, or to request additional time to complete ADR, or to advise of procedural action on the part of the court which might facilitate the ADR procedure, or to communicate whether an agreement has been reached as to particular issues in the case, or to communicate contents of an agreement between the parties (unless the parties agree in writing that the agreement should not be disclosed), or to communicate information concerning discovery; pending motions or other action of the court or any party which, if resolved or completed, would facilitate the progress of the ADR procedure or the possibility of settlement. 13. Completion of the ADR Procedure The ADR procedure shall be completed within such time as is ordered by the court If an agreement is reached during the ADR procedure, it shall be reduced to writing. If possible, it should be reduced to writing within five calendar days. It is the obligation of the parties and/or their counsel to draw the agreement, with assistance of the neural as necessary. The written agreement shall be signed by the parties and witnessed by their counsel or the neutral. The court may require that any agreement which is not typewritten be transcribed in typewritten form and certified by the neutral. If only a partial agreement is reached, it shall be reduced to writing and signed in the same manner as the full agreement referred to above If the ADR proceeding does not produce an agreement, the neutral shall so notify the judge and ADR administrator to whom the case was assigned. 9