KITSAP COUNTY LOCAL COURT RULES

Rule 87

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KCLCR 87 MEDIATION

(a) Definitions.

For purposes of these rules:

(1) “Mediation” means a voluntary process in which a neutral person or persons facilitate communication between disputants to assist them in reaching a mutually acceptable agreement. Mediation includes any communication between a person and a mediator for the purpose of initiating, considering, facilitating, or reconvening a mediation or retaining the mediator.

(2) “Mediator” means a neutral person who conducts a mediation.

(b) Effect Of Rules.

(1) Nothing in these rules expands or limits a court’s authority to order participation in a settlement conference as provided by court rules. Nothing in these rules authorizes or affects the enforceability of a contract clause in which parties agree to the use of mediation.

(2) Nothing in these rules makes admissible evidence that is inadmissible under court rule, evidence rule, or statute.

(c) Actions Eligible For Court-Sponsored Mediation.

(1) Referral by Stipulation

Any complex civil matter may be mediated under these rules. The parties to any such matter may file a written stipulation to mediate all or any issue between them at any time. Such stipulation shall be incorporated into an Order Transferring to Voluntary Mediation.

(2) Exclusions from Mediation

Mandatory arbitration or family law type cases may not be mediated under these rules. Except as otherwise set forth in (a) above, only matters specified by the court or by rule shall be referred to mediation under these rules.

(3) Settlement Conference Waived

Parties electing to submit their case to voluntary mediation under these rules shall be excused from the mandatory settlement conference requirement unless the court orders otherwise. (KCLCR 16)

(d) Scheduling Of Mediation.

(1) Hearing Date

Unless otherwise ordered by the court, the first mediation shall be held within six (6) weeks of the Order Transferring to Voluntary Mediation. The parties are responsible for providing adequate facilities and equipment for the mediation. The mediator shall be notified of the facilities within ten (10) days of the execution of the stipulation for mediation.

At least five (5) days or more before the mediation, each side shall have delivered to the mediator and each party a brief (not to exceed ten (10) pages) written summary of the case containing a list of issues as to each party. If the attorney filing the summary wishes its contents to remain confidential, he/she should advise the mediator in writing at the same time the summary is filed. The summary shall include the facts of the occurrence or dispute, opinions of liability, all damages and injury information, and any offers or demands regarding settlement. Names of all participants in the mediation shall be disclosed to the mediator in the summary prior to the session.

(2) Notice of Date, Time and Place

The mediator shall confirm with the parties in writing the location, date and time of the mediation at least 15 days prior to the mediation. The mediator will provide a copy of the notice, and any amendments or continuances, to the Superior Court Mediation Manager.

(e) Mediator Qualifications/General Standards.

(1) Superior Court Mediator

The Superior Court shall maintain a list of mediators who have been certified by the Court and who have registered for appointment. For certification as a mediator, the following qualifications must be met:

(A) Complete a basic mediation training program of at least 36 hours approved by the Kitsap County Superior Court, and have experience in mediating or co-mediating at least ten (10) mediations; or

(B) Be a member in good standing of the Washington State Bar with at least ten years of practice and experience in facilitated mediation; or

(C) Be a retired superior court judge with experience in facilitated mediation.

(2) Mediator General Standards

In each case, the mediator shall comply with such general standards as may, from time to time, be established and promulgated in writing by the Kitsap County Superior Court or other lawful authority.

(3) Decertification of Mediators

The eligibility of each mediator to retain the status of a certified mediator may be periodically reviewed by the Presiding Judge. Failure to adhere to these rules governing mediation or the general standards provided for above may result in the decertification of the mediator.

(4) Appointment of the Mediator

The parties shall obtain from the Court a list of mediators certified by the Kitsap County Superior Court. The parties shall present a stipulation for voluntary mediation designating a certified mediator from the list provided by the court. If all parties cannot agree on a mediator, the court shall appoint one from the list of approved mediators. A mediator shall be appointed to only one case per two calendar months unless the mediator agrees to more frequent appointments.

(5) Commitment of the Mediator

Court-assigned mediators shall perform three (3) pro-bono mediation hours per case after which, if the parties desire to continue the mediation, the mediator shall be compensated at the rate of $130 per hour. The attorneys and parties are responsible for payment of any mediator fees. Each party shall pay equally the total charges of the mediator. Fees should be paid to the mediator no later than the close of the mediation. All compensation due to mediators shall be collected by the mediator him/herself. Court staff shall under no circumstances be involved in the collection or compensation of a mediator for his/her services.

(6) Disqualification of a Mediator

Any party may request recusal of a mediator for good cause. Nothing in this provision shall preclude mediators from disqualifying themselves or refusing any assignment. The time for mediation shall be tolled during any periods in which a Motion to Disqualify is pending.

(f) Mediation Rules And Procedures.

(1) Interim or Emergency Relief

A party may apply to the Court for interim or emergency relief at any time. Mediation shall continue while such a motion is pending absent a contrary order of the Court or a decision of the mediator to adjourn pending disposition of the motion.

(2) Sanctions for Failure to Appear

If a party fails to appear at a duly noticed mediation without good cause, the Court upon motion may impose sanctions, including an award of mediator and attorney fees and other costs, against the party failing to appear. If a party to mediation is a public entity, that party shall be deemed to appear at a mediation by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity. Otherwise, unless stipulated by the parties with consent of the mediator, or by order of the Court, a party is deemed to appear at a mediation if the following persons are physically present:

(A) The party with full authority to settle without further consultation;

(B) The party's counsel of record, if any;

(C) A representative of an insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to negotiate and recommend settlements to the limits of the policy or the most recent demand, whichever is lower, without further consultation; and

(D) Such other persons as may be necessary to effect a full settlement without further consultation. If any party requires post settlement approval of a mediated agreement, that fact shall be disclosed to the mediator and all parties in writing at least 15 days before commencement of the mediation.

(3) Adjournments

The mediator may adjourn the mediation at any time and may set times for reconvening the adjourned session. No further notification is required for parties present at the adjourned session.

(4) Counsel

The mediator shall at all times be in control of the mediation and the procedures to be followed in the mediation. Counsel shall be permitted to communicate privately with their clients.

(5) Communication with Parties

The mediator may meet and consult privately with either party and his/her representative during the mediation session. Ex parte communication is permissible at any time.

(6) No Agreement/Termination

Any party, or the mediator, may terminate the mediation at any time after the mediation begins.

(7) Agreement

If an agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any, immediately upon the conclusion of the mediation. Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than the written settlement agreement of the parties unless all parties to the mediation, including the mediator, expressly agree otherwise in writing.

(8) Imposition of Sanctions

In the event of any breach or failure to perform under the agreement, the Court upon motion may impose sanctions, including costs, attorney fees, or other appropriate remedies including entry of judgment on the agreement.

(9) Discovery

Discovery may continue throughout mediation in accordance with applicable court rules, orders, and statutes.

(10) Confidentiality of Communications

All oral or written communications or statements in a mediation, other than an executed settlement agreement, shall be exempt from discovery and shall be confidential and inadmissible as evidence in the underlying cause of action or for any other purpose unless all parties and the mediator agree otherwise in writing.

(11) Evidence Otherwise Admissible

Evidence otherwise admissible or subject to discovery outside of a mediation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation conference.

(12) Forms

The forms necessary for the operation of the Court-sponsored mediation program shall be provided by the Court.

(13) Protections Before and After Mediation Ends

Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, or confidential under these rules before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.

(14) Attorney’s Fees and Costs

If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a writing and the Court or other adjudicative body determines that the testimony or writing is inadmissible under these rules, or protected from disclosure under these rules, the Court or adjudicative body making the determination may award reasonable attorney’s fees and costs to the mediator against the person seeking the testimony or writing.

(15) Subsequent Trials; References to Mediation

Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial. Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole or in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.

(16) Mediation Evaluation

To assist the court in maintaining the quality and benefits of the mediation program, each attorney or party to a mediation shall submit an evaluation of the process to the court within ten (10) days of completion or termination of a mediation conducted under these rules. The evaluation form shall be provided by the court.