Rule 4 - Appellate Mediator(a) Qualifications of Mediator. Before a person can be accepted as an appellate mediator, he or she must submit a Mediator Application (Form 1) to the appellate mediation office and meet the following criteria. (1) Appellate Mediator Roster. The appellate mediation office shall maintain a roster of approved appellate mediators. An approved appellate mediator is someone who: A. Is a former justice or judge of an appellate court of this State in good standing with the Alabama State Bar and 1. Has indicated his or her desire to be appointed as a mediator for purposes of these Rules by completing and submitting to the appellate mediation office an application (Form 1 to these Rules) to serve as mediator for the appellate mediation program; 2. Is on the Alabama State Court Mediation Roster; 3. Has agreed to serve as a mediator pro bono pursuant to Rule 4(h); 4. Has agreed to adhere to the Alabama Code of Ethics for Mediators; 5. Has agreed to be bound by these Alabama Rules of Appellate Mediation; and 6. Has agreed to waive any and all claims against the appellate court in connection with his or her mediation of any court-referred dispute; or B. Is an attorney in good standing with the Alabama State Bar and 1. Has indicated his or her desire to be appointed as a mediator for purposes of these Rules by completing and submitting to the appellate mediation office an application (Form 1 to these Rules) to serve as mediator for the appellate mediation program; 2. Has successfully completed the six-hour appellate mediation course approved by the appellate mediation office; 3. Is on the Alabama State Court Mediation Roster; 4. Has agreed to serve as a mediator pro bono pursuant to Rule 4(h); 5. Has agreed to adhere to the Alabama Code of Ethics for Mediators; 6. Has agreed to be bound by these Alabama Appellate Mediation Rules; and 7. Has agreed to waive any and all claims against the appellate court in connection with his or her mediation of any court-referred dispute. (2) Nonroster Mediator. Nothing in these Rules prevents the parties from choosing their own mediator, so long as the proposed mediator: A. Is in good standing with the licensing board for the profession in which the person practices or, if the profession is not licensed, has three written recommendations. The appellant shall attach documentation showing these qualifications to the Report on Status of Selection of Mediator Form within 14 days from the date of the issuance of the Order of Referral to Mediation; B. Has agreed to adhere to the Alabama Code of Ethics for Mediators; C. Has agreed to be bound by these Alabama Appellate Mediation Rules; and D. Has agreed to waive any and all claims against the appellate court in connection with his or her mediation of any court-referred dispute. (b) Duty of Mediator Before Accepting Appointment. Before accepting an appellate case for mediation, a mediator must make all disclosures to the parties required by the Alabama Code of Ethics for Mediators, Standard 5, subsection (b). If, upon receipt of such disclosure, it is determined that the mediator is unable to serve, the parties may, within seven days, name a different person, who has the requisite qualifications as a mediator (see Rule 4(a) ). If the parties cannot agree on a mediator within the seven-day period, the appellate mediation administrator shall appoint a mediator. (c) Inability of Mediator to Serve. If, once a mediator has accepted an appellate case for mediation, the mediator becomes unwilling or unable to serve, the mediator shall immediately notify the appellate mediation office. Within seven days of such notice, the parties may name a different person, who has the requisite qualifications, as an appellate mediator (see Rule 4(a) ). If, within that seven-day period, the parties cannot agree on a mediator, the appellate mediation administrator shall appoint a mediator. (d) Authority of Mediator. The mediator shall attempt to help the parties reach a satisfactory resolution of their dispute; the mediator does not have the authority to impose a settlement upon the parties. The mediator is authorized to conduct joint and separate meetings with the parties and to communicate offers between the parties as the parties authorize. The mediator is authorized to end the mediation when, in the judgment of the mediator, further efforts at mediation would not contribute to a resolution of the dispute between the parties. (e) Ethics. Mediators shall adhere to the rules of conduct for mediators as stated in the Alabama Code of Ethics for Mediators. (f) Fees and Expenses. The parties shall mutually agree on the fees of the mediator selected by them. If a mediator is appointed, the mediator's fee and incidental expenses shall be shared equally between the parties, unless otherwise determined by the final mediation agreement. The mediator may require an advance deposit covering the estimated cost of mediation, but in any event, arrangements for payment of the cost of mediation and incidental expenses must be coordinated directly with the mediator. Attorneys for each party shall see to prompt payment of the fees and expenses. If satisfactory arrangements for compensation cannot be made, then the parties shall so advise the appellate mediation office, and the appellate mediation administrator will name another mediator. (g) Billings to Parties. The mediator shall bill the parties based upon the rates and terms agreed to by the mediator and parties. It is not necessary to send copies of fee agreements or billings to the appellate mediation office. The parties are solely responsible for any billings by the mediator. It is highly recommended that the private mediator fully disclose and explain to the parties the basis of compensation, fees, and charges to the parties in advance of the mediation and that the fee arrangement be memorialized in a written contract. Such disclosures and explanations usually include:
(1) The basis for and amount of any charges for services to be rendered, including minimum fees and travel time; (2) The amount charged for the postponement or cancellation of mediation sessions and the circumstances under which such charges will be assessed or waived; (3) The basis and amount of charges for any other items; and (4) The parties' pro rata share of mediation fees and costs if the parties have previously agreed to share those fees and costs. Neither the appellate court nor the appellate mediation office will aid in the enforcement of the terms and conditions of the contract, including the collection of any outstanding fees, costs, and expenses.
(h) Pro Bono Mediators. Upon request from the court, all appellate mediators must mediate two cases each year for which they will not be paid. (1) The Motion for Waiver of Mediator Fees. Any party may file a motion for a waiver of mediator fees (Form 9 to these Rules) before a mediator is appointed to mediate the party's case. The motion for waiver of mediation fees must be accompanied by an affidavit in support of a motion for appointment of pro bono mediator (see Form 9A, Alabama Forms of Appellate Mediation). Only valid reasons for the waiver of mediation fees, such as undue financial hardship, will be considered. (2) Order Appointing Pro Bono Mediator. All pro bono appointments shall be so indicated in the Order Appointing Pro Bono Mediator (Form 10 to these Rules). (i) Disqualification of an Appellate Mediator. An appellate mediator may be disqualified from mediating appellate cases pending in the Supreme Court of Alabama and the Alabama Court of Civil Appeals for: (1) Violating Rule 55, Ala. R. App. P., the Alabama Appellate Mediation Rules, or the Alabama Code of Ethics for Mediators; (2) Failure to remain in good standing and abide by the standards of practice established by the Alabama State Bar or the Alabama Center for Dispute Resolution, or, if the mediator is a nonroster mediator, failure to remain in good standing with the licensing board for the profession in which the person practices; or (3) At the discretion of the Court. Adopted 1/1/2004; amended 1/6/2004; amended 1/27/2005; Amended 9/15/2008.The order amending Rule 1(a), Rule 2(f), Rule 4(h), Rule 5(f)(2), and Rule 6(b) and adopting the Court Comment to Amendment to Rule 6(b), is effective September 15, 2008.
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