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Mediating in the last frontier.

The Alaska Supreme Court recently adopted a new rule of court authorizing mediation in all civil cases. Effective July 15, 1993, Civil Rule 100 permits a judge to appoint a mediator at the request of one of the parties or on the court's own initiative if the judge determines that mediation may result in an equitable settlement of any issues in the case.

The Supreme Court's action is the end product of an inquiry that began in 1989 in response to a legislative directive that the court system evaluate the potential benefits of mediation. Thereafter, the court's Task Force On Mediation and the Civil Rules Standing Committee did just that and then proposed the new rule authorizing mediation.

Mediation, like arbitration, is one of the forms of dispute resolution that jurisdictions across the country are actively reviewing as an alternative to litigation. Mediation involves the use of a neutral third party (mediator) to assist or guide the disputants toward a solution that they can both live with. Unlike an arbitrator (or a judge), a mediator does not impose a binding decision on the parties. Instead, the parties must commit to reaching a voluntary resolution of their dispute and they retain control of the outcome.

Mediation is an informal and confidential process that offers considerable advantages over courtroom adjudication. It is generally considered to be faster than judicial decision-making given current caseloads -- and less expensive. Further, the process is less adversarial and, therefore, better able to preserve working relationships between the parties for future purposes.

Alaska's new rule provides for mediation at any time after a complaint is filed if the court determines that an equitable settlement may result. In making this determination in any domestic relations case, the court may consider, for example, whether there is a history of domestic violence that could impact the fairness of the mediation process or the physical safety of the domestic violence victim. Mediation expressly may not be ordered in cases involving conduct that constitutes domestic violence or in petitions for domestic violence protection, or in any criminal proceeding.

If mediation is ordered by the court, the parties must attend an initial session. Thereafter, a party may withdraw from mediation or the mediator may terminate the process if the mediator determines it is unlikely to be successful. If the parties can't agree on the selection of a mediator, the judge selects one for them. The parties are still entitled to have their attorneys present at all mediation conferences.

All mediation proceedings are held in private and are confidential; the mediator can't testify to any aspect of the proceedings. The new rule further specifies that the costs of mediation are to be borne equally by the parties unless the judge decides to apportion them differently. If mediation is successful in resolving the dispute, the parties file a stipulation for dismissal of the case (or any part of the case) for court approval.

The court system has prepared a brochure that explains mediation and how the new civil rule works. Also, the court system has published a directory of mediators to provide parties and judges with assistance in locating a mediator. The directory is available in each of the state law libraries.

Each of the mediators listed in the directory has completed an information form that includes an indication of the mediator's training, experience, fees and areas of expertise. Mediators are not screened or otherwise sanctioned or certified by the court. At present, there are no universally accepted qualifications or standards in that regard and mediators have diverse educational backgrounds. Any mediators who wish to submit an information form for inclusion in the directory should contact a clerk of court or the court rules attorney.

The Alaska Bar Association has scheduled a morning program on Oct. 22, 1993, which will focus on how judges and practitioners are implementing the new mediation rule. The lectures and panel discussions will feature mediators and judges, who will also field questions.

In the near future, the court system will probably consider changes necessary to make mediation available in small claims cases. Stay tuned.

Daniel Patrick O'Tierney is an Anchorage attorney who serves as a public utilities commissioner for Alaska.
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Title Annotation:JurisPrudence; new ruling from Alaska Supreme Court
Author:O'Tierney, Daniel Patrick
Publication:Alaska Business Monthly
Article Type:Column
Date:Aug 1, 1993
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