| A | B | C | D | E | |
|---|---|---|---|---|---|
1 | Table of State Neutral Compensation Rules and Statutes (May 22, 2023) | ||||
2 | By: Elan E. Weinreb, Esq., Managing Member, The Weinreb Law Firm, PLLC - Note: Google Chrome or Microsoft Edge are preferred browsers. | ||||
3 | State | Statute Citation | Compensation Amount or Details | Comments | Research Contributors |
4 | Alabama | Alabama Rules of Appellate Mediation Rule 4(f) and Alabama Civil Court Mediation Rule 15(a-c) | For Civil Appellate Mediation: "Agreement of Parties but with No Court Involvement" - "(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." For Civil Trial Mediation: "Reasonable Compensation Plus Deposits" - "(a) Expenses. The expenses of a witness for a party shall be paid by the party producing the witness. All other expenses of the mediation, including necessary travel and other expenses of the mediator, the expenses of any witnesses called by the mediator and the cost of any evidence or expert advice produced at the direct request of the mediator, shall be borne equally by the parties unless the parties agree otherwise, or unless the court directs otherwise. (b) Mediator's Fee. A mediator shall be compensated at a reasonable rate, agreed to by the parties, or as set by the court. The mediator's fee shall be borne equally by the parties, unless they agree otherwise, or unless the court directs otherwise pursuant to Rule 2. (c) Deposits. Before the mediation process begins, each party to the process shall deposit with the mediator such an amount of the anticipated expenses and fees as the court shall direct or the mediator reasonably requires. When the mediation process has been terminated, the mediator shall render an accounting, requiring payment of additional expenses and fees by the appropriate parties, or returning any unexpended balance to the appropriate parties." | Alabama does not appear to have court-annexed arbitration, but there is a draft Arbitration Act from 2001 that provides for arbitrator compensation as set forth in an award. See Section 21(4) of the Draft Alabama Arbitration Act. Alabama appellate mediators are expected to handle two cases (which are pre-perfection) pro bono per year upon request from the Court. See Alabama Rules of Appellate Mediation Rule 4(h). | Federica Romanelli |
5 | Alaska | Alaska Rule of Civ. Proc. 100(b)(3) and Alaska Rule of Prob. Proc. 4.5(b)(3) | For civil mediation or early neutral evaluation (that's found in Rule 100(i)), fees are by agreement of the parties subject to allocation by the Court - "(b) Order. An order of mediation must state: . . . (3) that the costs of mediation are to be borne equally by the parties unless the court apportions the costs differently between the parties." For probate mediation or early neutral evaluation (that's found in Rule 4.5(j)), the compensation scheme is as above but restricts the use of estate funds to pay for mediation - "(b) . . . (3) that the costs of mediation are to be borne equally by the interested persons unless the court apportions the costs differently; estate funds may be used to pay the costs of mediation only upon order of the court or agreement of all persons whose interests would be affected by payment from the estate" | Alaska has an attorney-client fee dispute arbitration program that provides for arbitrator compensation in complex cases, including but not limited to any case where the amount-in-controversy is over $50,000. However, estimates of fees must be provided for in advance. See https://alaskabar.org/for-the-public/attorney-fee-disputes/faqs-fee-arbitration/ Alaska does not appear to have court-ordered mediation for civil disputes as initiated by the court (i.e., sua sponte court-ordered mediation). Rather, an application for mediation must be made by one of the parties to a dispute. See Alaska Rule of Civil Procedure 100(a). Likewise, arbitration of general civil disputes does not appear to be mandatory. See id. Rule 100(i)(2). See also Alaska Court System - Mediation - Frequently Asked Questions - "How much does mediation cost? Under Civil Rule 100 and Probate Rule 4.5, if the court orders private mediation, the parties share the cost of mediation unless the judge orders otherwise. When you mediate and it isn't court ordered, you decide how to share the cost. The court offers low-cost mediation in a variety of cases, including divorce with children, child custody, minor guardianships, adult guardianships, and Child in Need of Aid." | Federica Romanelli & Dorothy Kaldi |
6 | Arizona | Ariz. Rev. Stats. § 12-133(G) and Ariz. Sup. Ct. R. Civ. Proc. 76(f) and Ariz. Rev. Stats. 12-134 and Ariz. R. Fam. L. Proc. 67.3(f) | For Non-Binding Mandatory Arbitration of Cases in Superior Court Having an Amount-in-Controversy of $65,000 or Less: Reasonable Per Diem Compensation Capped at $140 Per Day and Determined by Each Individual Court But Paid by Individual Counties, Not the Parties - "G. Each arbitrator shall be paid a reasonable sum, not to exceed one hundred forty dollars per day, to be specified by the rules of the appointing court, for each day necessarily expended by the arbitrator in the hearing and determination of the case. The compensation of the arbitrators shall be paid by the county, in which the court has jurisdiction, from its general revenues and shall not be taxed as costs." "(f) Arbitrator's Compensation. An arbitrator assigned to an action under these rules is entitled to receive as compensation for services a fee not to exceed the amount allowed by A.R.S. § 12-133(G) per day for each day, or part of a day, necessarily expended in hearing the action. For this rule's purposes, “hearing” means any fact-finding proceeding or oral argument resulting in the filing of an award, or at which the parties agree to settle and stipulate to the action's dismissal. The fee to be paid in each county must be decided by a majority vote of the judges in that county. The amount must be incorporated into a superior court order that is filed with the Supreme Court clerk, with a copy filed with the clerk in that county. When more than one action arising out of the same transaction is heard at the same hearing or hearings, it will be considered as one action for purposes of compensating the arbitrator." For Mediation Generally: Specific Neutral Compensation Rates Are Not Set, But Courts Are Empowered to Charge Fees for the Administration of ADR Programs - "12-134. Mediation; fee. A. A court may refer cases to mediation and other alternative dispute resolution procedures to promote the resolution of cases filed in the court. B. The board of supervisors in each county, in cooperation with the presiding judge of the superior court in the county, may establish a reasonable fee for alternative dispute resolution services provided by the court in the county. If a judicial officer provides the alternative dispute resolution services, a fee shall not be imposed." For Mediation in Family Law Cases Where Reference to a Private Mediator Is Made by the Court: Mediator Determines His/Her Financial Destiny Via Negotiated Agreement With the Parties and Without Court Involvement - "(f) Payment for a Private Mediator's Services. The parties must contract directly with a private mediator and be responsible for payment of the mediator's fees. Unless the parties agree or the court orders otherwise, the cost of mediation must be shared equally by the parties." | Non-binding arbitration of civil disputes in Arizona Superior Courts can be waived by the parties, but there must also be an additional showing of "good cause" for this to happen. See Ariz. Rev. Stats. § 12-133(B). While Arizona courts can require parties to attend court-administered mediation conferences in family law cases, they do not have the power to compel them to actively participate in mediation (and this principle would likely carry over to mediation in other contexts as well). As such, mediation is strongly "encouraged" in Arizona, but unlike arbitration, not compulsory. See generally Ariz. R. Fam. L. Proc. 67.3(a) ("(a) Generally. Private mediation is a voluntary and confidential process in which parties confer with a neutral mediator to help them resolve the dispute. The parties may retain a private mediator under Rule 67.3(d), or a private mediator may be selected by the court under Rule 67.3(e). Although the court may order a party to appear for a mediation conference, participation in mediation is voluntary."). However, as noted in the left columns, once a private mediator is selected by an Arizona court, there is a clear statutory mandate for mediators to be compensated based on negotiated agreement. | |
7 | Arkansas | Ark. Code Ann. § 16-108-221(d) and Ark. Code Ann. § 16-7-104(1)(3)(A) and Ark. Code Ann. § 16-7-202(b), (d) and Ark. ADR Commission Requirements for the Conduct of Mediation and Mediators Standard 9 | For Arbitration by Prior Agreement of the Parties: Arbitrator Determines His/Her Financial Destiny - "16-108-221. Remedies -- Fees and expenses of arbitration proceeding. . . . (d) An arbitrator's expenses and fees, together with other expenses, must be paid as provided in the award." For Mediation of Civil Cases: Agreement of the Parties But Courts Will Not Intervene to Determine the Amount of Neutral Compensation - "16-7-104. Powers and duties of [Arkansas ADR] [C]ommission. . . . The Arkansas Alternative Dispute Resolution Commission shall have the authority and responsibility to: . . . (3)(A) Establish standards and rules for the certification, professional conduct, discipline, and training of persons who shall be eligible and qualified to serve as compensated mediators, negotiators, conciliators, arbitrators, or other alternative dispute resolution neutrals in and for state and local courts." "16-7-202. Duty and authority of the courts. . . . (b) . . . [E]ach circuit and appellate court of this state is vested with the authority to order any civil, juvenile, probate, or domestic relations case or controversy pending before it to mediation. . . . (d) (1) A party may move to dispense with the order to mediate for good cause shown. (2) For purposes of this subsection, “good cause shown” shall include, but not be limited to, a party's inability to pay the costs of mediation." "STANDARD 9. FEES AND EXPENSES; PRO BONO SERVICE - A. General Requirements. A mediator occupies a position of trust with respect to the parties and the court system. In charging for services and expenses, the mediator shall be governed by the same high standards of honor and integrity that apply to all other phases of the mediator’s work. A mediator shall be scrupulous and honest in billing and should avoid charging excessive fees and expenses for mediation services. B. Records. A mediator shall maintain adequate records to support charges for services and expenses and shall make an accounting to the parties or to the court upon request. C. Referrals. No commissions, rebates, or similar remuneration shall be given to or received by a mediator for referral of persons for mediation or related services. D. Contingent Fees. A mediator shall not charge or accept a contingent fee or base a fee in any manner on the outcome of the mediation process. E. Minimum Fees. A mediator may specify in advance minimum charges for scheduling or conducting a mediation session without violating this Standard. F. Disclosure of Fees. When a mediator is contacted directly by the parties for mediation services, the mediator has a professional responsibility to respond to questions regarding fees by providing a copy of the basis for charges including all fees and expenses. G. Pro Bono Service. Mediators are encouraged to meet the needs of those unable to pay for their services by offering their services pro bono or at a reduced rate of compensation whenever appropriate." | Arkansas is a presumptive ADR state when it comes to mediation of civil cases but is also a "hands off" state when it comes to mediator compensation. This means that it is up to the parties and their mediator to arrange for compensation, save for a case where a party demonstrates inability to pay. In such a case, as a matter of law, mediation can no longer be mandated by the court. The net effect of this statutory scheme is to elevate the issue of compensation into a "game killer" when it comes to proceeding with court-annexed/ordered mediation even though the scheme also establishes an implied presumption of fair neutral compensation (i.e., a default expectation that neutrals are to be compensated for their services). Specifically, a party who or which is unable to pay (which can easily translate into "does not want to pay") for mediation services can take an initial "no pay is going to the mediator" position, and by so doing, torpedo the mediation process even before it gets off the ground. At the same time, people who would take such a position not out of indigency but out of malice probably will not mediate in good faith such that the time of all involved in the mediation process would be wasted. While arguably not perfect for maintaining a system of mandatory mediation, at least Arkansas' statutory scheme does not require mediators to work for free, which is the case in "free time" presumptive ADR systems such as those of California and New York. While it is true that the Arkansas ADR Commission - the state agency responsible for ADR operations in the courts - encourages pro bono or "low bono"/reduced rate service (see Requirements for the Conduct of Mediation and Mediators Standard 9(G) in the column to the left), it also is the case that charging minimum fees is explicitly permitted under Standard 9(E). In summary, Arkansas is a state that does not subscribe to mediator slavery. | Federica Romanelli & Dorothy Kaldi |
8 | California | CODE OF CIVIL PROCEDURE - CCP PART 3. OF SPECIAL PROCEEDINGS OF A CIVIL NATURE - TITLE 3. OF SUMMARY PROCEEDINGS - SECTION 1141.18(b) and CODE OF CIVIL PROCEDURE - CCP PART 3. OF SPECIAL PROCEEDINGS OF A CIVIL NATURE - TITLE 11.6. CIVIL ACTION MEDIATION - SECTION 1775.8(a) | Left up to Judicial Council rules after certain minimum thresholds are met - "(b) The Judicial Council rules shall provide for the compensation, if any, of arbitrators. Compensation for arbitrators may not be less than one hundred fifty dollars ($150) per case, or one hundred fifty dollars ($150) per day, whichever is greater. A superior court may set a higher level of compensation for that court. Arbitrators may waive compensation in whole or in part. No compensation shall be paid before the filing of the award by the arbitrator, or before the settlement of the case by the parties." For Mediators: "(a) The compensation of court-appointed mediators shall be the same as the compensation of arbitrators pursuant to Section 1141.18, except that no compensation shall be paid prior to the filing of a statement of nonagreement by the mediator pursuant to Section 1775.9 or prior to settlement of the action by the parties." IMPORTANT NOTE: While these statutes are still "on the books" in California, they are not followed such that California is effectively a "free time" state. See the "Comments" column for more information. | From: https://www.courts.ca.gov/policyadmin-jc.htm - "The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff help implement the council’s policies." Some courts, such as the Alameda County Court, provide for free time (2 hours), after which mediators can charge their regular fees. In this court, mediators are also permitted to ask for a refundable deposit. See http://apps2.alameda.courts.ca.gov/adr/Default.aspx/. How this historically and practically squares with the minimum compensation of $150 set forth in CCP Section 1141.18(b) is spelled out in this article: https://www.mediate.com/articles/parselle3.cfm. Short answer: California ran out of money to compensate mediators, and note the phrase "if any" concerning compensation in CCP Section 1141.18(b). Other courts, such as the San Diego County Superior Court, provide for mediator compensation from a mediation session's commencement at a set rate of $150 per hour for two hours in limited civil cases (i.e., generally where the amount-in-controversy is <=$25,000 - see Cal. Code Civ. Proc.§§ 85-86) and $250 for two hours in unlimited civil cases, whereupon mediators receive "their regular hourly rate thereafter for court-referred mediations." (San Diego County Superior Court, Mediation, Civil Mediation Program). See also California Rules of Court Rule 10.781(c)(2), requiring Court-related ADR neutrals to offer pro bono or "modest means" rates not "in at least one case per year, not to exceed eight hours." (https://www.courts.ca.gov/cms/rules/index.cfm?title=ten&linkid=rule10_781). Of course, the implication of this provision is to establish a default of compensation. | |
9 | Colorado | Combination of Colo. Rev. Stat. § 13-22-303, Colo. Rev. Stat. § 13-22-305(3), Colo. Rev. Stat. § 13-22-313, and Private Contracting with Neutrals for Reduced Rates | Enabling statute leaving amount of compensation to a director of a state office of dispute resolution, which then contracts privately with mediators and other neutrals at reduced rates established by Supreme Court order - "There is hereby established in the judicial department the office of dispute resolution, the head of which shall be the director of the office of dispute resolution, who shall be appointed by the chief justice of the supreme court and who shall receive such compensation as determined by the chief justice." "(3) Each party who uses the mediation services or ancillary forms of alternative dispute resolution in section 13-22-313 of the office of dispute resolution shall pay a fee as prescribed by order of the supreme court. Fees shall be set at a level necessary to cover the reasonable and necessary expenses of operating the program. Any fee may be waived at the discretion of the director. The fees established in this part 3 shall be transmitted to the state treasurer, who shall credit the same to the dispute resolution fund created in section 13-22-310." | The Colorado Office of Dispute Resolution and other ADR agencies (some county-specific) contract with mediators based upon the statutes appearing in the left columns. See the following links for more information and rates (and note that Colorado's Office of Dispute Resolution compensates mediators even in SMALL CLAIMS cases): 1) A Party’s Guide to Colorado Court-Ordered Mediation (at page 8 - https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Court%20Programs/ODR/Mediation%20Guide%20for%20Colorado%20Courts/APartyGuide.pdf); 2) Mediation Guide for Colorado Courts (at pages 27-28 - https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Court%20Programs/ODR/Mediation%20Guide%20for%20Colorado%20Courts/Mediation%20Guide%20for%20Colorado%20Courts%20as%20Posted%20on%20Intraweb.pdf - "Rates vary from free, to $100.00 (CMS Civil and domestic), $120.00 (ODR for domestic, $150.00 for civil) per hour to $400.00 or more per hour.") 3) Fees for Services (as of 2018) as Ordered by the Colorado Supreme Court (Rice, C.J.) - https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Court%20Programs/ODR/Orders/2018%20Signed%20Fee%20Order.pdf | |
10 | Connecticut | Conn. Gen. Stats. § 52-407uu(d) and Conn. Gen. Stats. § 52-549w(b) and Conn. Gen. Stats. § 52-549p(b) and Conn. Gen. Stats. § 52-235(c) and Conn. Gen. Stats. § 52-190(c)(c) | For Arbitration of Cases Where Amount-in-Controversy is Greater Than $50,000: Arbitrator Determines His/Her Compensation Destiny - "Sec. 52-407uu. Remedies, fees and expenses of arbitration proceeding. . . . (d) An arbitrator's expenses and fees, together with other expenses, must be paid as provided in the award." For Arbitration of Jury Cases Where Amount-in-Controversy is Less Than $50,000 and a Certificate of Closed Pleadings Has Been Filed: $100 Per Day Plus $25 for Each Filed Decision Plus $200 Allowance in Difficult or Extraordinary Cases - "(b) Each arbitrator shall receive one hundred dollars for each day he is assigned to a courthouse facility to conduct proceedings as an arbitrator and an additional twenty-five dollars for each decision filed with the court. In difficult or extraordinary cases, the Chief Court Administrator may, in his discretion, make a further allowance not to exceed two hundred dollars for services rendered attendant to but not part of the hearing." For Fact-Finding in Contract Cases Involving Money Damages Only, Less Than $50,000, Not Involving Uninsured/Underinsured Motorists, and a Certificate of Closed Pleadings Has Been Filed: $100 Per Day Plus $25 for Each Filed Finding of Fact Plus $200 Allowance in Difficult or Extraordinary Cases - "(b) Each fact-finder shall receive one hundred dollars for each day he is assigned to a courthouse facility to conduct hearings as a fact-finder, and an additional twenty-five dollars for each finding of fact filed with the court. In difficult or extraordinary cases the Chief Court Administrator may, in his discretion, make a further allowance not to exceed two hundred dollars for services rendered attendant to but not part of the hearing." Almost every other type of general civil ADR (see "Comments" column to the right) in Connecticut, including but not limited to mediation, is controlled by a statute that requires the parties to stipulate to the use of ADR processes and PROHIBITS court involvement in the operation of ADR programs (which would include the determination of neutral compensation issues). "Sec. 52-235c. Referral to alternative dispute resolution program. Stay of proceedings in court. The court may, upon stipulation of the parties, refer a civil action to an alternative dispute resolution program agreed to by the parties. The court shall not in any way impact or influence the alternative dispute resolution program selected by the parties. The court shall set a time limit on the duration of the referral, which shall not exceed ninety days. Such referral shall stay the time periods within which all further pleadings, motions, requests, discovery and other procedures must be filed or undertaken until such time as the alternative dispute resolution process is completed or the time period set by the court has elapsed, whichever occurs sooner." For Mediation Sessions Other Than the First (which are conducted by sitting judges) in Negligence Actions Against Health Care Providers: Mediator Determines His/Her Compensation Destiny Except for Apportionment of Fees - "If the action is not resolved at the first mediation session and the parties agree to further mediation, the presiding judge of such civil session shall refer the action for mediation before an attorney who has experience as an attorney related to such civil actions and who has been a member of the bar of the state of Connecticut for at least five years. Upon such referral, mediation shall begin as soon as practicable, but not later than twenty business days after the referral. Fifty per cent of the cost of such mediation shall be paid by the plaintiffs, and fifty per cent of the cost of such mediation shall be apportioned among all defendants who are parties to the mediation." | Connecticut's judiciary has an informative webpage summarizing all court-sponsored/court-affiliated ADR programs in the state. However, a review of this webpage—and particularly the recurring phrase "Can be used for"—establishes that Connecticut DOES NOT OFFER PRESUMPTIVE OR MANDATORY ADR such these programs are completely voluntary in nature. As such, with the exception of arbitrations discussed in the columns to the left over which courts can order arbitration and some very limited cases such as negligence actions brought against healthcare providers (Conn. Gen. Stats. § 52-190(c)) in which mediation is mandated by statute, there is no need for neutral compensation statutes in Connecticut with respect to general civil disputes. Connecticut's "Judicial Branch does not maintain rosters or endorse any particular ADR provider." This also makes establishing a general neutral compensation scheme difficult beyond arbitration and those limited areas in which mediation is mandated. | |
11 | Delaware | 10 Del. Code § 546(e) and Del. Superior Ct. R. Civ. P. 16.1(j) and 10 Del. Code § 1324 and Del. Ct. Common Pleas Civ. R. 16(a)(5) | "§ 546. Mediation and arbitration proceedings for business disputes. . . . (e) This section is intended to encourage the resolution of business disputes by means of arbitration and mediation. The Superior Court should interpret its rule-making authority broadly to effectuate that intention." For Arbitration of Most Civil Cases in Superior Court Where $50K or Less Is Contested: Reasonable Rate and Payment Enforced by Court - "(j) Compensation. (1) Unless otherwise stipulated in advance by the parties, the arbitrator appointed, except nonretired members of the State Judiciary, shall receive compensation from the parties for services for a minimum of three (3) hours of hearing time at a reasonable rate set by the arbitrator. Each party shall pay that party’s share of the total MNA [Mandatory Non-Binding Arbitration] fee in advance of the hearing. It is the obligation of each attorney, or any party appearing pro se, to timely pay any arbitrator’s fee when billed. Any attorney who refuses or neglects to pay the arbitrator’s fee, after second notice, may be subject to a loss of civil case filing privileges. (See Civil Rule 77(h)(E)). (2) An arbitrator who certifies that he or she has performed services in excess of three (3) hours may receive additional compensation from the parties for such additional time, provided that the arbitrator provides the terms for additional compensation to the parties in writing in advance of the hearing and all parties agree to those terms. Fee agreements will be enforced by the Court upon a Motion filed by the arbitrator." For Mediation of Business Cases in Superior Court Where $100K or More Is Contested: Court-Appointed Mediator Receives $150 Per Hour with a Two-Hour Minimum - "(f) Compensation for Mediation. -- The Court will be compensated by the parties to the mediation in accordance with the schedule of fees maintained by the Prothonotary [a state official akin to a clerk]." That schedule, available here, provides: "When a Superior Court Commissioner serves as a mediator, the fee for mediation services shall be a minimum of two (2) hours at the rate of $150 per hour of hearing time. Each party shall pay the party's share to the Prothonotary within twenty (20) days of notice of the appointment of the Commissioner as a mediator. It is the obligation of each attorney, or any party appearing pro se, to timely pay the costs of ADR and any additional mediation fee when billed. The Court may impose sanctions against any party who fails to timely pay any fee required by this rule. The fee shall be deposited to the General Fund." " § 1324. General powers of Court [of Common Pleas]. The Court shall have all the powers of a court of record possessed by the Superior Court of the State in the endorsement of its writs, rules, processes, the attendance of witnesses, the requiring of security for costs from nonresident plaintiffs, the production of documents, books and records and the production of all other necessary evidence." [Thus, whatever rule-making authority the Superior Court has is extended to the Court of Common Pleas]. For Arbitration, Mediation, and Other ADR Processes in a Wide Variety of Civil Cases: ADR Practictioner Determines His/Her Financial Destiny Supported by Court - "(5) The parties shall pay the ADR Practitioner in accordance with the allocation and amount of fees established by the ADR Practitioner and agreed to by the parties or ordered by the Court. The ADR Practitioner may apply to the Court for sanctions against any party who fails to comply with the terms of engagement established by the ADR Practitioner and agreed to by the parties including, but not limited to, dismissal of the action or default judgment." | In addition to Delaware's Superior Court and Court of Common Pleas having robust neutral compensation schemes, Delaware's renowned Court of Chancery has specialized mediation programs for technology (10 Del. Code § 346) and business disputes (10 Del. Code § 347), both of which can be addressed even pre-litigation by mediators who are court employees (i.e., Chancellors, Vice-Chancellors, Masters, etc.). Insofar as these programs involve extraordinary compensation paid to the Court--$10,000 for the first day and then $5,000 per day of mediation, for example--they are not discussed in the columns to the left in that for the most part, large corporations, not individuals, pay these fees. For more information on compensation due in these programs, which are NOT mandatory in nature, and require disputes of at least $1,000,000 in controversy, see Delaware Court of Chancery Rules 93-95 and the accompanying CIVIL ACTION FEES table. There are also certain types of specialized cases that the Court of Chancery can refer to mandatory mediation and these are governed by Court of Chancery Rule 174, which is discussed in an informational pamphlet published by the Delaware Courts. Neutral compensation in these cases is governed by Rule 174(l), which provides: "(l) Compensation and Court costs. -- A non-judicial mediator shall be compensated at the rate and in the manner agreed upon by the parties. A judicial mediator shall not be compensated. At the conclusion of the mediation in any civil action or matter involving a trust, the parties shall be assessed an additional court cost in the amount of $5,000 for each day or partial day of mediation with a judicial mediator. At the conclusion of the mediation in any guardianship matter, probate dispute or dispute involving a deed covenant or restriction, the parties shall be assessed an additional court cost in the amount of $1,500 for each day or partial day of mediation with a judicial mediator. No additional court cost shall be incurred for a judicial mediator's initial teleconference with the parties or for time spent by a judicial mediator preparing for the mediation. Court costs relating to mediations shall be deposited in a separate account maintained by the Court of Chancery and shall be used from time to time at the discretion of the Chancellor for mediation training or other Court-related purpose. If the State or an agency of the State is a participant in mediation with a judicial mediator, the portion of the court costs allocated to the State shall be waived by the Court." Finally, Delaware has a voluntary arbitration program, detailed in the Delaware Rapid Arbitration Act, 10 Del. Code § 5801-12, specifically dedicated to business entities and resolution of business disputes, that provides for arbitrator compensation but also FINANCIAL PENALTIES if arbitrators fail to issue awards in a timely manner. Section 5806(b) thus provides: "(b) Unless otherwise provided in an agreement, an arbitrator’s fees and expenses, together with other expenses incurred in the conduct of an arbitration, but not including counsel fees of parties to the arbitration, shall be borne as provided in a final award. Notwithstanding the foregoing, an arbitrator that fails to issue a final award in compliance with § 5808(b) of this title is not entitled to full payment of the arbitrator’s fees. The arbitrator’s fees must be reduced by 25% if the final award is less than 30 days late; the arbitrator’s fees must be reduced by 75% if the final award is between 30 and 60 days late; and the arbitrator’s fees must be reduced by 100% if the final award is more than 60 days late. Notwithstanding the foregoing sentence, upon petition by an arbitrator, the Court of Chancery may summarily determine, on clear and convincing evidence, that exceptional circumstances exist such that the reductions in the foregoing sentence should be modified or eliminated." While complicated and detailed, Delaware's neutral compensation statutes and rules represent a strategic compromise: complicated cases are addressed by giving the parties the ability to resolve their disputes via experienced judges in exchange for the payment of relatively high fees paid to the judiciary. These fees, in turn, are used to fund training programs and other ADR initiatives, which might arguably include compensation of neutrals in less-complicated cases where indigent parties are involved. | Dorothy Kaldi |
12 | Florida | TITLE V - CHAPTER 44 - MEDIATION ALTERNATIVES TO JUDICIAL ACTION - 44.108(2) - Funding of mediation and arbitration. - and Rule 10.380, Florida Rules for Certified and Court-Appointed mediators | Depends on case type (i.e., whether family law-based or limited civil dispute with varying amounts-in-controversy) and comes with a funding plan - Established either by statute or Rules of the Supreme Court of Florida - "(2) When court-ordered mediation services are provided by a circuit court’s mediation program, the following fees, unless otherwise established in the General Appropriations Act, shall be collected by the clerk of court: (a) One-hundred twenty dollars per person per scheduled session in family mediation when the parties’ combined income is greater than $50,000, but less than $100,000 per year; (b) Sixty dollars per person per scheduled session in family mediation when the parties’ combined income is less than $50,000; or (c) Sixty dollars per person per scheduled session in county court cases involving an amount in controversy not exceeding $15,000. No mediation fees shall be assessed under this subsection in residential eviction cases, against a party found to be indigent, or for any small claims action. Fees collected by the clerk of court pursuant to this section shall be remitted to the Department of Revenue for deposit into the State Courts Revenue Trust Fund to fund court-ordered mediation. . . . " Rule 10.380 sets forth guidelines for mediators with respect to charging fees but does not specify any definite hourly, other time-based, or flat rate. | "9. How much does it cost to go to mediation? The cost of mediation depends on many factors. In some cases (example: small claims) the court provides mediators for free. In family cases, the amount charged depends on whether the court program provides the mediator or the parties are selecting their own mediator. If the program provides the mediator, the amount charged depends on the parties’ combined or joint income. [See section 44.108(2), Florida Statutes]. Many circuits provide dependency mediation services at no charge to the parents. Check with the mediation program in your circuit to see if such services are available. Parties who select private mediators should expect to pay market rates. The ethical standards for mediators require that the mediator provide a written explanation of any fees and costs prior to the mediation. The mediator may have minimum fees and charge for travel time, postponements, cancellations, or other expenses. (See rule 10.380, Florida Rules for Certified and Court-Appointed mediators). If the parties do not select a mediator, the court will select a mediator and will set the fees the mediator may charge." (Emphasis added). From: Florida Courts Website - https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution/Mediation-in-Florida | |
13 | Georgia | 2019 Georgia Code - Title 15 - Courts - Chapter 23: Court-Connected Alternative Dispute Resolution § 15-23-11. Compensation of nonvolunteer neutrals by the parties | Established by individual courts based on Georgia Commission on Dispute Resolution guidelines - "(a) Under guidelines promulgated by the Georgia Commission on Dispute Resolution, a court may set an hourly rate for compensation of nonvolunteer neutrals by the parties. Such costs shall be predicated upon the complexity of the litigation, the skill level needed by the neutral, and the litigants' ability to pay. (b) Under guidelines promulgated by the Georgia Commission on Dispute Resolution, a court may set a user's fee for alternative dispute resolution processes." | Enabling statute similar in form and scope to 28 U.S.C. § 658. Funding for ADR programs provided for by GA Code § 15-23-7 (2019) (maximum fee of $10 per case). IMPORTANT STATEMENT ON COMPENSATION FROM GEORGIA COMMISSION ON DISPUTE RESOLUTION IN SECTION VI OF SUPREME COURT ADR RULES: "Although the contribution of volunteers to ADR programs throughout the country is inestimable, the Georgia Supreme Court believes that the comprehensive system of statewide ADR services envisioned by these rules cannot be handled entirely by unpaid volunteers. This court is convinced that in order to build and maintain a statewide system of ADR services of the extent and quality desired, there must be mechanisms for compensating neutrals at appropriate levels. This court also believes that the Georgia ADR program will require a combination of volunteers, salaried in-house neutrals, and free market neutrals in order to meet the highly varied demands and circumstances of courts in urban, rural, and suburban areas." | |
14 | Hawaii | Hawaii Constitution, Art. 6 § 7 and Hawaii Cir. Cts. R. 12.2(a), (b) and Hawaii Dist. Cts. R. 12.2 | "Section 7. The supreme court shall have power to promulgate rules and regulations in all civil and criminal cases for all courts relating to process, practice, procedure and appeals, which shall have the force and effect of law." For Arbitration, Mediation, and Other ADR Processes in General Civil Cases: Neutral Sets Compensation But With Individual Court Oversight - "Rule 12.2. ALTERNATIVE DISPUTE RESOLUTION. (a) Authority to order. The court, sua sponte or upon motion by a party, may, in exercise of its discretion, order the parties to participate in a non-binding Alternative Dispute Resolution process (ADR or ADR process) subject to terms and conditions imposed by the court. ADR includes mediation, summary jury trial, neutral evaluation, non-binding arbitration, presentation to a focus group, or other such process the court determines may be helpful in encouraging an economic and fair resolution of all or any part of the disputes presented in the matter. Subsections (a) through (e) do not apply to ADR administered by the Hawai‘i Judiciary, such as the Court Annexed Arbitration Program. (b) Factors to consider; fees and expenses. (1) Before ordering a case to ADR, the court may consider factors, including, but not limited to, the current status of the case, whether the parties would be better served by a settlement conference held by a court, whether the parties are willing to participate in ADR, and whether the parties have previously participated in ADR in the pending matter. In addition, the court may consider whether ordering a case into ADR would result in an unfair or unreasonable economic burden to any party. (2) All ADR fees and expenses of the neutral shall be borne equally by the parties unless otherwise agreed to by the parties, ordered by the court, or provided by law. A party who cannot afford to pay all or any portion of fees or expenses charged under this rule may file a motion with the court to be excused from payment or to pay an appropriately reduced amount or rate." Note: Hawaii's District Courts have a similar rule, albeit without the explanatory subsection (b) quoted above. "Rule 12.2. ALTERNATIVE DISPUTE RESOLUTION. The court, in its discretion or upon motion by a party, may order the parties to participate in an alternative dispute resolution process subject to conditions imposed by the court." | Like many other states, Hawaii has a state-established dispute resolution center designed to offer no-cost mediation to parties--particularly state agencies--in a variety of matters. See 13 Hawaii Rev. Stats. § 613-2 and the Hawaii State Juidiciary's "About the Center" webpage. A network of no-cost Community Mediation Centers, similar to New York's Community Dispute Resolution Centers, also exist. Finally, Hawaii has a no-cost mandatory arbitration program for certain personal injury cases where the damages sought are $150,000 or less. As opposed to Hawaii's District Courts, where only non-jury trials are available and jurisdiction in general civil cases is capped at an amount-in-controversy of $40,000 or less, Hawaii's Circuit Courts are courts of general jurisdiction with respect to both civil and criminal cases and "have exclusive jurisdiction in probate, guardianship and criminal felony cases, as well as civil cases where the contested amount exceeds $40,000." While it does not appear that the Hawaii Courts set any specific compensation rates, they do have some guidelines on the topic for mediators. "IV. Costs and Fees - 1. Explanation of Fees and Charges. If fees are charged, a mediator or his or her agency should explain before mediation begins the fees and any other related costs to be charged. Mediators or their agencies should commit their understanding to a written agreement with the participants before the mediation process begins. 2. Contingent Fees - Reporter Note: There have been unresolved discussions about whether contingency fees should be allowed, i.e., this section eliminated or modified. Concern is: What happens to the mediation process if the mediator has a financial stake in the outcome? On the other hand, if contingent fees are prohibited then sophisticated participants who desire and use this type of fee arrangement would be prevented from using it. Three possibilities: Neither mediators nor their agencies should charge contingent fees or base fees on the outcome of mediation; neither mediators nor their agencies should charge contingent fees or base fees on the outcome of mediation unless special precautions are taken to minimize potential conflicts associated with the fee arrangement; charging contingent fees or fees based on the outcome is normally discouraged, although in special situations with competent advice, both participants may agree to such arrangements. Reporter Note: Virtually all standards which have considered this issue have categorically disallowed such fees. . . . 3. Referrals and Commissions. No commissions, rebates, or similar forms of remuneration should be given or received by a mediator for referral of clients for mediation or other related services." | Dorothy Kaldi |
15 | Idaho | Idaho Code § 1-212 and Idaho Code § 7-1505(4) and Idaho Code § 7-910 and Idaho R. Civ. P. 37.1(h) and Idaho R. Fam. Law Proc. 603(h) | "1-212. RULE-MAKING POWER RECOGNIZED. The inherent power of the Supreme Court to make rules governing procedure in all the courts of Idaho is hereby recognized and confirmed." For Arbitration (Non-Binding) of Civil Cases Where Amount-in-Controversy Is Less Than $35,000: Maximum Compensation of $1,000 Per Case - "(4) Evaluators shall submit their rates of hourly compensation, if any, to the supreme court when submitting their request to be on the list of civil litigation evaluators. The clerk shall include the rate of hourly compensation, if any, for each evaluator in the list of names submitted to the parties. The parties shall each pay an equal portion of a private evaluator’s fee if any is charged as well as an equal portion of any actual costs incurred by the private evaluator. Individuals who wish to serve as private civil litigation evaluators under this chapter other than on a pro bono basis shall agree to serve as an evaluator in exchange for a fee not to exceed one thousand dollars ($1,000) unless the parties agree otherwise." For Arbitration of Civil Cases Where Amount-in-Controversy is $35,000 or More: Arbitrator Determines His/Her Financial Destiny - "7-910. FEES AND EXPENSES OF ARBITRATION. Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award." For Mediation in Civil Cases: Mediators Determine Their Fees and Expenses - "(h) Compensation of Mediators. Mediators must be compensated at their regular fees and expenses, which must be clearly set forth in the information and materials provided to the parties. Unless other arrangements are made among the parties or ordered by the court, the interested parties must be responsible for a prorata [sic] share of the mediator's fees and expenses. If a mediator is not paid, the court, upon motion of the mediator[,] may order payment." For Mediation in Family Court Cases (Except Custody and Visitation): Mediators Determine Their Fees and Expenses - "(h) Compensation of Mediators. Mediators must be compensated at their regular fees and expenses, which must be clearly set forth in the information and materials provided to the parties. Unless other arrangements are made among the parties or ordered by the court, the interested parties will be responsible for a pro rata share of the mediator's fees and expenses. If a mediator is not paid, the court may order payment, upon motion of the mediator." | Idaho is one of the few states where small-to-mid-size claims (up to $35,000 amount-in-controversy) arbitrators/evaluators who conduct non-binding arbitrations (i.e., there is a right to trial de novo) can be compensated for their services. As can be seen from the left columns, the parties pay for fees and expenses equally. In such cases, there is also an option for the parties to select mediation, and while the state statutory scheme appears to treat evaluators and mediators equally, it is not clear that this is the case with respect to compensation. See Idaho Code § 7-1503. Idaho is also one of the rare states where all types of criminal cases--misdemeanors AND felonies--are mediated at the request of the parties. See generally Idaho Crim. R. 18.1. Rule 18.1(c) provides for compensation of mediators who are senior judges or justices. ("If the selected mediator is a senior judge or justice, the mediator will be compensated as with any senior judge service, and approval from the trial court administrator must be obtained by the court prior to the mediation."). | Dorothy Kaldi |
16 | Illinois | 735 Illinois Compiled Stats. 5/Art. II Pt. 10A and Illinois Sup. Ct. Rule 87(e) & cmt. and Illinois Const. Art. VI § 16 and Illinois Sup. Ct. Rule 99 and 1) Circuit Court of Cook County Part 20 (Rules) Court-Annexed Civil Mediation - Rule 20.03(b) - Compensation of the Mediator and 2) Lake County Judicial Circuit Court - Part 3.00 Civil Division Mediation Program - Rule 7-3.04(C)(3), (5) Mediation Rules and Procedures | "Sec. 2-1001A. Authorization. The Supreme Court of Illinois, by rule, may provide for mandatory arbitration of such civil actions as the Court deems appropriate in order to expedite in a less costly manner any litigation wherein a party asserts a claim not exceeding $75,000 or any lesser amount as authorized by the Supreme Court for a particular Circuit, or a judge of the circuit court, at a pretrial conference, determines that no greater amount than that authorized for the Circuit appears to be genuinely in controversy." For Non-Binding Arbitration in Civil Cases in Circuit Courts Up to Jurisdictional Limit: $100 Per Hearing - "Rule 87. Appointment, Qualification and Compensation of Arbitrators . . . (e) Compensation. Each arbitrator shall be compensated in the amount of $100 per hearing. . . . Paragraph (e). The fee recommended in this rule to be paid to arbitrators is consistent with the amounts now being paid as arbitrators’ fees in other jurisdictions. It was the view of the Committee that the fee be standard throughout the circuits utilizing these services; the same level of competency and performance should be expected." "SECTION 16. ADMINISTRATION. General administrative and supervisory authority over all courts is vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules." For Mediation of Civil Cases - Compensation Left Up to Each Local Court - "Rule 99. Mediation Programs. (a) Applicability to Circuits. Mediation programs may be undertaken and conducted in those judicial circuits which, with the approval of the Supreme Court, elect to utilize this procedure and in such other circuits as directed by the Supreme Court. (b) Local Rules. (1) Each judicial circuit electing to establish a mediation program shall adopt rules for the conduct of the mediation proceedings. . . . (2) At a minimum, the local circuit court rules shall address: (i) Actions eligible for referral to mediation; (ii) Appointment, qualifications and compensation of the mediators . . . ." For Cook County - $250/hr. (if parties cannot agree) - "Unless otherwise agreed in writing by and between the parties and the mediator, the mediator shall be compensated by the parties at the rate of $250.00 per hour. In the event that a person appointed by the Court or appointed with the Court’s assistance as the mediator refuses to accept an appointment at the rate of $250.00 an hour, the Court will appoint or assist in the appointment of an alternate court-certified mediator from the list of court-certified mediators who is willing to accept that rate. Unless otherwise agreed by the parties or ordered by the Court upon good cause shown, each party shall pay a proportionate share of the total charges of the mediator." For Lake County - As Determined by Court with One Hour Minimum Compensation - "3. When the parties cannot agree on a mediator, the Court shall appoint a mediator from the list of mediators as provided in LCR 7-3.05(A) of these Rules. The compensation for a mediator so appointed shall be shared proportionately by all parties participating in the mediation conference. Once a mediator has been appointed, the mediator shall be entitled to a minimum of one hour’s compensation . . . 5. The fee of an appointed mediator shall be subject to appropriate Order or Judgment for enforcement. Fees are the joint responsibility of each party and his counsel." | Illinois has a number of court-annexed programs that differ with respect to neutral compensation when it comes to mediation (although this is not the case when it comes to mandatory non-binding arbitration). See "Compensation Amount or Details" column for two examples of different mediator compensation schemes and Resolution Systems Institute's webpage on Illinois court-ordered ADR for more information. See also Rule 13.5 of the 21st Judicial Circuit's Local Rules (Iroquois and Kankakee Counties) for an example of a sliding scale fee system based upon case amount-in-controversy (SC = Small Claims Cases (<= $10K); LM = Law Magistrate Cases (>$10K and <$50K); L = Law Cases (>$50K)). Lake County's mediator compensation scheme is interesting in that it requires mediators to serve pro bono on two (2) cases per year but also allows "split" cases where if one party is indigent and the other can pay for mediation services, the party who can pay does pay, and the mediator is given pro bono credit for the indigent party. See Rules 7-3.04(C)(1) and (C)(4). It's not clear why in Illinois a specific statutory authorization is present for mandatory arbitration but not mediation when the Supreme Court's Rule 99(c)(2) specifically mentions mediator compensation as a topic that must be addressed as part of a Circuit Court's mediation rules. | |
17 | Indiana | Ind. Code 34-8-1-3 and Indiana Rules of Court - Rules for Alternative Dispute Resolution Rule 2.6 and Indiana Rules of Court - Rules for Alternative Dispute Resolution Rule 3.3 | "IC 34-8-1-3 Power of supreme court to adopt, amend, and rescind procedural rules. Sec. 3. The supreme court has authority to adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana. These rules must be promulgated and take effect under the rules adopted by the supreme court, and thereafter all laws in conflict with the supreme court's rules have no further force or effect." For Mediation: Agreement of the Parties or Court Empowered to Set Mediator Compensation - "Rule 2.6. Mediation Costs. Absent an agreement by the parties, including any guardian ad litem, court appointed special advocate, or other person properly appointed by the court to represent the interests of any child involved in a domestic relations case, the court may set an hourly rate for mediation and determine the division of such costs by the parties. The costs should be predicated on the complexity of the litigation, the skill levels needed to mediate the litigation, and the litigants' ability to pay. Unless otherwise agreed, the parties shall pay their mediation costs within thirty (30) days after the close of each mediation session." For Arbitration: Agreement of the Parties or Court Empowered to Set Arbitrator Compensation - "Rule 3.3. Assignment of Arbitrators. . . . Unless otherwise agreed between the parties, and the arbitrators selected under this provision, the Court shall set the rate of compensation for the arbitrator. Costs of arbitration are to be divided equally between the parties and paid within thirty (30) days after the arbitration evaluation, regardless of the outcome. Any arbitrator selected may refuse to serve without showing cause for such refusal." | Indiana's ADR Rules are uniform and apply to all courts throughout the State in all types of civil actions. See Preamble to Indiana Rules of Court - Rules for Alternative Dispute Resolution ("These rules are adopted in order to bring some uniformity into alternative dispute resolution with the view that the interests of the parties can be preserved in settings other than the traditional judicial dispute resolution method.") and Rule 1.4 ("These rules shall apply in all civil and domestic relations litigation filed in all Circuit, Superior, County, Municipal, and Probate Courts in the state."). Nonetheless, Indiana also has a network of Community Dispute Resolution Centers established by statute for judges to refer cases as they deem fit. See generally Ind. Code 34-57-3. | Dorothy Kaldi |
18 | Iowa | Iowa R. Civ. Proc. 1.281(5) and Iowa Code Title 25 § 679A.10 and Iowa R. Civ. Proc. 11.9 | IMPORTANT: Presumptive/mandatory court-annexed/court-ordered ADR is EXPLICITLY PROHIBITED by the Iowa Rules of Civil Procedure in the absence of an overriding statute or regulation, which can be local in scope (see the "Comments" column for an example). In this regard, Iowa R. Civ. Proc. 1.281(5) provides: "1.281(5) Settlement conference; alternative dispute resolution. Unless the parties have agreed to engage in alternative dispute resolution or are required to do so by contract or statute, the court may not, by order or local rule, require the parties to engage in a settlement conference or in any other form of alternative dispute resolution." For Arbitration: Where Allowed, Arbitrator Determines His/Her Compensation Destiny - "679A.10. Fees and expenses of arbitration. Unless otherwise provided in the agreement to arbitrate, and except for counsel fees, the arbitrators’ expenses and fees and any other expenses incurred in the conduct of the arbitration shall be paid as provided in the award." For Mediation: Where Allowed, Mediator Fees Have to Be Keyed to Case and Market Variables and Set Forth to the Parties in Writing - "Rule 11.9 Fees and other charges. 11.9(1) A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses, and any other actual or potential charges that may be incurred in connection with a mediation. a. If a mediator charges fees, the mediator should develop them in light of all relevant factors, including the type and complexity of the matter, the qualifications of the mediator, the time required, and the rates customary for such mediation services. b. A mediator’s fee arrangement should be in writing unless the parties request otherwise. 11.9(2) A mediator shall not charge fees in a manner that impairs a mediator’s impartiality. a. A mediator should not enter into a fee agreement that is contingent upon the result of the mediation or amount of the settlement. b. While a mediator may accept unequal fee payments from the parties, a mediator should not allow such a fee arrangement to impact adversely the mediator’s ability to conduct a mediation in an impartial manner." | Like Illinois, certain districts within Iowa have specific neutral compensation schemes, insofar as there is an actual statutory prohibition against court-annexed/court-ordered ADR. For example, in the Fifth Judicial District (which covers sixteen counties), for domestic relations/family law cases (which are exempted from the general prohibition against court-annexed/court-ordered ADR by Iowa Code Title 25 § 598.7), an informational document authored by the Polk County Bar Association—entitled "District Court Mediation Program"—advises potential participants of the "costs for mediation includ[ing] a $80 administrative fee and the mediator’s fee ranging from $50 to $250 per hour. Normally, the fee is split, but the court could require you to reimburse the other side. You should plan on a three-hour session and bring funds sufficient to cover your share of the costs. Assuming a split fee, your cost range is $125 – $350. If you are from low or no income circumstances, you may be eligible for reduced-rate or pro bono mediation. Those who qualify for Legal Aid or the Volunteer Lawyers Project; those on public assistance programs such as FIP, WIC, Food Stamps or SSI; and those unable to work due to mental or physical disabilities, are eligible. Eligible persons pay a fee of $10 per hour. If you do not meet the above requirements, you can still minimize your costs by choosing a mediator with a lower hourly rate. Competent mediators are available in all price ranges. You can now pay your mediation fees via a credit card online at https://secure.affinipay.com/pages/pcba/mainpage." For an example of a statute that overrides the state prohibition against court-annexed/court-ordered ADR, see Iowa Admin. Code § 322C.21, which deals with disputes concerning the sale of towable recreational vehicles. Therein, service of a demand for mediation is a prerequisite to a dealer, manufacturer, distributor, or warrantor's civil action. If a demand for mediation is accepted Iowa Admin. Code § 322C.21(2)(f) provides that "[t]he costs of the mediation services shall be allocated equally amongst the parties." | Dorothy Kaldi |
19 | Kansas | Kansas Stat. Ann. § 5-443(d) and Kansas Stat. Ann. § 5-516 and Kansas Sup. Ct. Rule 907(d)(1) | For Arbitration: Arbitrator Determines His/Her Financial Destiny - "5-443. Remedies; fees and expenses of arbitration proceeding. (d) An arbitrator's expenses and fees, together with other expenses, must be paid as provided in the award." For Mediation: Agreement of Parties with Court Oversight - "5-516. Supreme court adopts rules. The supreme court, upon recommendation by the director in consultation with the council, shall adopt rules for the administration of the dispute resolution act and to prescribe ethics requirements and standards for approved programs and individuals." Rule 907 - Mediation "(d) Written Agreement. A mediator must enter into a written agreement with each party. The written agreement must include . . . (1) Fees and Costs. The written agreement must state: (A) an explanation of the fee each party must pay, including any fee associated with postponement, cancellation, or nonappearance; (B) all mediation costs apportioned between the parties as ordered by the court or agreed to under K.S.A. 23-3506 [pertains to family law cases]; and (C) that the apportionment of mediation costs may be modified only by written agreement of the parties or court order." | Kansas Supreme Court Rules 905-922, entitled "Rules Relating to Dispute Resolution," are relatively new, having become effective only on January 1, 2020. Also, Kansas has a state-wide roster/directory of neutrals listing their respective fees. Estimated average compensation is somewhere around $250/hr. Court-annexed arbitration does not appear to exist in Kansas, save in three limited scenarios: where the parties cannot agree upon the appointment of one or more arbitrators, where an arbitrator refuses an appointment, and where a previously-appointed arbitrator is rendered incapacitated or otherwise unfit to serve. In these circumstances, the Court becomes empowered to appoint one or more arbitrators as necessary. See Kansas Stat. Ann. § 5-433(a). | |
20 | Kentucky | Ky. Revised Statutes § 417.140 and Ky. Sup. Ct. Order No. 2005-02 and Ky. Model. Med. R. 6 | For Arbitration: Arbitrator Determines His/Her Financial Destiny - "417.140 Fees and expenses of arbitration. Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses, fees and other expenses incurred in the conduct of the arbitration shall be paid as provided in the award. Attorneys' fees shall not be awarded unless a provision therefor is contained in the written agreement submitted to arbitration." For Mediation: "Reasonable Compensation" - "Section 3. Ethical Guidelines . . . (3) Mediation Costs. As early as practicable, and before the mediation session begins, a mediator should explain all fees and other expenses to be charged for the mediation. A mediator should not charge a contingent fee or base a fee upon the outcome of the mediation. In appropriate cases, a mediator should perform mediation services on a sliding scale, at a reduced fee, or without compensation, based on the parties' ability to pay. Comment (a). In court mediations, a mediator should avoid the appearance of impropriety regarding the amount of the mediator's fee. The fee should be reasonable and no greater than the mediator's standard rate as a mediator. Comment (b). If a party and the mediator have a dispute that cannot be resolved before commencement of the mediation as to the mediator's fee, the mediator should decline to serve so that the parties may obtain another mediator." "Rule 6. Mediator compensation - The mediator shall be compensated at the rate agreed between the mediator and the parties if the mediator is chosen by agreement. If the mediator is appointed by the Court, the fee for the mediator shall be reasonable and no greater than the mediator's standard rate as a mediator. Unless otherwise agreed by the parties or ordered by the Court, the parties shall equally divide the mediator's professional fees." | Court-annexed arbitration does not appear to exist in Kentucky, save in three limited scenarios: where the parties' agreement does not provide a method for arbitrator appointment, where the method for arbitrator selection that the parties agreed to fails for whatever reason, and where a previously-appointed arbitrator is rendered incapacitated or otherwise unfit to serve. In these circumstances, the Court becomes empowered to appoint one or more arbitrators as necessary. See Ky. Revised Statutes § 417.070. | |
21 | Louisiana | La. Revised Statutes § 9:4109 and La. Revised Statutes § 13:5207 | Mediation: "Agreement Between the Parties or Selection of New Mediator" - "§4109. Cost of mediation . A. The cost of mediation shall be agreed in writing by the parties and the mediator prior to commencement of mediation. If there is no agreement on such cost, the court shall rescind the appointment and the selection of a mediator shall commence anew. B.(1) Unless otherwise ordered by the court in its referral order or unless the parties agree to some other allocation of cost: (a) The cost of mediation shall be taxed as costs of court, to be shared equally by the parties. (b) If the case is not settled by mediation, the costs of mediation shall be taxed as costs of court upon rendition of a final judgment. (2) No later than the conclusion of the mediation, whether or not successful, the parties shall pay the cost of mediation, unless the parties and the mediator have agreed otherwise. The mediator may intervene in any pending civil case between the parties to the mediation to enforce payment of the cost of the mediation. An intervention to enforce payment of the cost of the mediation shall be disposed of as a summary proceeding." Small Claims Arbitration: "Court Enabled to Set Reasonable Compensation by Local Rule" - "§5207. Arbitration awards. A. The judge may refer small claims cases to an attorney at law who shall serve as arbitrator provided the parties agree to be bound by his arbitration. An attorney at law so appointed by the judge shall conduct the proceedings in the manner described in R.S. 13:5208(A), and, if authorized by rule of court, he may be entitled to reasonable compensation for his services to be paid from court funds if available." | Louisiana does not have set rates for neutrals. With respect to mediation, if the parties cannot agree on a mediator's rate, a new mediator is then selected. Query whether at some point, shrewd counsel could simply place a case into "mediation limbo" by refusing to agree to compensate the mediator. In addition, this system arguably paves a path for experienced neutrals to low-ball their less experienced colleagues out of economic existence by charging extremely low rates and then, once their less experienced colleagues drop off of rosters, raising their fees again back to market rates. Like a Venus Flytrap, the lack of regulation here is at first glance attractive but may ultimately prove to be fatal to a large-scale presumptive ADR system. With respect to small claims arbitration, compensation is determined by local courts based on rules they enact. While vague, this compensation scheme at least gives less experienced arbitrators a chance at advancing. | Dorothy Kaldi |
22 | Maine | Maine Revised Statutes 4-18-B(2) and Maine R. Civ. P. 16(B)(d)(2) | For All Types of ADR: "Reasonable Per Diem Compensation Plus Expenses" - "2. ADR providers. The Judicial Department, through the State Court Administrator or the administrator's designee, shall contract for the services of qualified persons or organizations to serve as providers of ADR services to parties. The ADR providers are not employees of the State for any purpose. The ADR providers are entitled to be paid a reasonable per diem fee plus reimbursement of their actual, necessary and reasonable expenses incurred in the performance of their duties, consistent with policies established by the Administrative Office of the Courts." "(2) Unless the court orders or the parties otherwise agree, fees and expenses for the neutral shall be apportioned and paid in equal shares by each party, due and payable according to fee arrangements worked out directly by the parties and the neutral. Fees and expenses paid to the neutral shall be allowed and taxed as costs in accordance with Rule 54(f). If any party is unable to pay its share of the fees and expenses of the neutral, that party may apply for in forma pauperis status pursuant to Rule 91. If granted, the court may allocate the fee among those parties who are not in forma pauperis or ask the selected neutral to undertake the conference on a reduced fee basis. Failing the consent of the selected neutral to the reduced fee, the court will designate an alternate neutral from the roster developed by CADRES [Court Alternative Dispute Resolution Service] who will agree to undertake the assignment on a reduced fee basis or pro bono." | Note that the statutes quoted in the left columns are applicable to general civil actions filed in Superior Court. Certain types of actions at the parties' election can be excluded by right from being referred to ADR processes (with a quick example being personal injury actions where the amount in controversy is $30,000 or less). There are also specialized mediation programs in Maine for specific types of actions--evictions, foreclosures, land use and environmental, etc.--that have their own statutory frameworks. For more information, see https://www.courts.maine.gov/programs/adr/cases.html, with some notable excerpts quoted here: "In Family Matters, Small Claims, eviction and foreclosure cases, the parties pay a mediation fee to the court (unless the fee is waived), and the court pays the mediator. In civil cases in Superior Court, the parties pay the fee directly to the mediator." Land Use and Environmental and Natural Gas Pipeline Cases: "A mediation fee of $175 is required. This pays for up to four (4) hours of mediation. There is no filing fee to open the case." Small Claims Cases: "A mediator is usually present at the courthouse on the days small claims cases are heard. The mediator is provided by CADRES, and the mediator's fee is paid with the small claims court filing fee. There is no additional fee for small claims mediation on the day of mediation." | |
23 | Maryland | Md. Code Ann. § 3-221(a) and Md. Code Ann. § 1-201(a), (b) and Md. Ct. R. 17-208 and Md. Ct. R. 17-305 and Md. Ct. R. 17-406 and Md. Code Ann. § 3-2A-06C(o) | For Non-Court-Annexed Arbitrations Compelled/Enforced by the Court: Arbitrator Controls His/Her Financial Destiny - "§ 3-221. Expenses and fees. (a) Arbitrators. -- Unless the arbitration agreement provides otherwise, the award shall provide for payment of the arbitrators' expenses, fees, and any other expense incurred in the conduct of the arbitration" "§ 1-201. Rule-making power. (a) Court of Appeals. -- The power of the Court of Appeals to make rules and regulations to govern the practice and procedure and judicial administration in that court and in the other courts of the State shall be liberally construed. . . . (b) Other courts. -- Except for the District Court, other courts may by rule regulate terms of court for purposes other than the return of process and may make other rules of practice and procedure subject to and not inconsistent with any rule of the Court of Appeals." Arbitration, Mediation, and Other ADR (see Md. Ct. R. 17-102(d)) in Circuit Court Civil Disputes: Neutral Compensation as Set by Individual Circuit Courts - "Rule 17-208. Fee schedules. (a) Authority to adopt. Subject to the approval of the Chief Judge of the Court of Appeals, the county administrative judge of each circuit court shall develop and adopt maximum hourly rate fee schedules for court-designated individuals conducting each type of fee-for-service ADR. In developing the fee schedules, the county administrative judge shall take into account the availability of qualified individuals willing to provide those services and the ability of litigants to pay for them. Committee note. -- The maximum hourly rates in a fee schedule may vary based on the type, the alternative dispute resolution proceeding, the complexity of the action, and the qualifications of the ADR practitioner. (b) Applicability of fee schedules. The court's fee schedules apply only to ADR practitioners who are initially designated by the court, and not to an individual selected by the parties as a substitute mediator or to an ADR practitioner selected by the parties at the outset, even if the selection is subsequently memorialized by the court in an order of referral or consent order. (c) Compliance. A court-designated ADR practitioner subject to a fee schedule may not charge or accept a fee for the ADR in excess of that allowed by court order, and the amount stated in the court order may not exceed the fee stated in the applicable schedule. Violation of this Rule shall be cause for removal from court-approved ADR practitioner lists." Arbitration, Mediation, and Other ADR in Civil Disputes Other Than in Circuit Court: No Compensation Allowed - "Rule 17-305. No fee for court-ordered ADR. District Court litigants and their attorneys shall not be required to pay a fee or additional court costs for participating in a mediation or settlement conference before a court-designated ADR practitioner in the District Court." "Rule 17-406. No fee for court-ordered ADR. Subject to Rules 17-403(e) and 17-404(g) [which pertain to sanctions for failure to attend pre-hearing conferences or mediation sessions], Court of Special Appeals litigants and their attorneys shall not be required to pay a fee or additional court costs for participating in a prehearing conference or mediation ordered by the Court." For Mediation and Other ADR Processes in Health Care Malpractice Actions: ADR Provider Determines His/Her Financial Destiny - "(o) Costs. -- Unless otherwise agreed by the parties, the costs of alternative dispute resolution shall be divided equally between the parties." See also Md. Ct. R. 17-203(h) (same as (o) above)). | Maryland has three levels of courts that address civil disputes, discussion of which will be oversimplified here to focus on neutral compensation: (1) District Courts, which handle small claims, replevin, landlord-tenant, and most civil cases having an amount-in-controversy of $30,000 or less; (2) Circuit Courts, which are courts of general jurisdiction, and with certain exceptions, handle civil having an amount-in-controversy of $30,001 or more; and (3) Maryland's Court of Special Appeals and Court of Appeals, with the latter being the state's court of last resort. See generally Md. Code Ann. § 4-401 and § 4-402 for a discussion of the civil jurisdiction of the District Courts, which is most relevant here. Of these three levels, as can be seen from the columns on the left, neutral compensation in court-annexed ADR is only permitted for Circuit Court cases or as permitted by statute in specialized cases (with health care malpractice actions being provided as an example). Thus, the expectation in Maryland with respect to the performance of court-annexed ADR work is that unless the proverbial stakes are relatively high, neutrals are not entitled to compensation (i.e., they are expected to volunteer). As noted in Maryland Court Rule 17-208, each Circuit Court establishes its own neutral compensation schedules. As a representative example, here is the Baltimore City Circuit Court's compensation schedule: "In accordance with MD Rule 17-208, parties pay for court-ordered mediation at a reduced hourly rate set by the court. The current rate is $200 per hour. Mediation sessions are scheduled for a minimum of two (2) hours and may continue for so long as the parties and the mediator find it productive. If the parties select their own mediator (including a mediator who may be on the court’s roster), the parties pay the mediator’s private rate. The cost of the mediation is shared by the parties on a pro rata basis unless the parties agree otherwise. If the parties want a mediator other than the one assigned by the court, a substitution may be requested. Please see MD Rule 17-202 for the process of substituting a court-appointed mediator. Mediation sessions are usually held at the offices of the mediator but may be conducted wherever the parties agree (offices, libraries, shared conference space, community centers, etc.)." | |
24 | Massachusetts | Mass. R. Sup. Jud. Ct. Rule 1:18 - Uniform Rules on Dispute Resolution - Rule 7(e) | For All Types of ADR: Hybrid Model Similar to Colorado's with Some Court-Annexed Programs Not Providing for Compensation and Some Providing for Compensation After Courts Contract with ADR Providers - "(e) Fees. Programs may charge fees for service. Parties shall not be charged a fee for attendance at a mandatory screening session or an early intervention event, or for dispute resolution services provided by court employees. Fees charged by a provider of court-connected dispute resolution services shall be approved by the Chief Justice of the applicable court department. The fee schedule shall provide for fee waived or reduced fee services to be made available to indigent and low income litigants. Fees may not be contingent upon the result of the dispute resolution process or the amount of the settlement. Neutrals may assist parties to negotiate an equitable allocation of fees." | From FREQUENTLY ASKED QUESTIONS REGARDING UNIFORM RULES ON DISPUTE RESOLUTION: "(17) Do the Uniform Rules regulate the fees charged by programs? Answer: Yes. Fees charged by providers of court-connected dispute resolution services must be approved by the chief justice of the Trial Court department in which the services are provided. The Boston Municipal Court, the District Court and the Juvenile Court Departments have not approved programs in their departments that charge fees to litigants. The services of approved programs in the Land Court, the Probate and Family Court and the Superior Court Departments are predominately fee based. Dispute resolution services by Housing Specialists in the Housing Court Department and dispute intervention by Probation Officers in the Probate and Family Court Department are "in-house" programs and do not charge fees to litigants. Parties may not be charged a fee for attendance at a mandatory screening session or an early intervention event, or for dispute resolution services provided by court employees. Provision is made for reduced fee or fee waivers in the case of indigent persons. In no case, may the fee for court connected dispute resolution services be made contingent on the outcome of the dispute resolution process." Observation: there do not appear to be any programs that work based on time thresholds/barriers. Either a program is free or there is compensation (i.e., no gray area or potential for time to be abused). Source: https://casetext.com/rule/massachusetts-court-rules/massachusetts-rules-of-the-supreme-judicial-court/chapter-1-general-rules/rule-118-uniform-rules-on-dispute-resolution Also of interest: Trial Court List of Court-Connected Approved Programs for Alternative Dispute Resolution Services, located at: https://www.mass.gov/doc/the-trial-court-list-of-court-connected-approved-programs-for-alternative-dispute-resolution/download | |
25 | Michigan | Mich. Compiled Laws § 691.1701(4) and Mich. Court Rules Chap. 3 Civil Procedure - Rule 3.602(M) and Mich. Court Rules Chap 2. Civil Procedure - Rule 2.411 Mediation - Rule 2.411(D) | For Arbitration: Arbitrator Establishes His/Her Financial Destiny - "691.1701 Remedies; fees and expenses of arbitration proceeding. . . . (4) An arbitrator's expenses and fees, and other expenses, shall be paid as provided in the award." "(M) Costs. The costs of the [arbitration] proceedings may be taxed as in civil actions, and, if provision for the fees and expenses of the arbitrator has not been made in the award, the court may allow compensation for the arbitrator’s services as it deems just. The arbitrator’s compensation is a taxable cost in the action." For Mediation: "Reasonable Compensation" - Rule 2.411(D)(1) - "A mediator is entitled to reasonable compensation commensurate with the mediator's experience and usual charges for services performed." | Court-annexed arbitration does not appear to exist in Michigan, save in three limited scenarios: where the parties' agreement does not provide a method for arbitrator appointment, where the method for arbitrator selection that the parties agreed to fails for whatever reason, and where a previously-appointed arbitrator is rendered incapacitated or otherwise unfit to serve. In these circumstances, the Court becomes empowered to appoint one or more arbitrators as necessary. See Mich. Compiled Laws § 691.1691(1). Other Michigan Court Rule Provisions of Interest Concerning Mediation: "(2) The costs of mediation shall be divided between the parties on a pro-rata basis unless otherwise agreed by the parties or ordered by the court. The mediator's fee shall be paid no later than: (a) 42 days after the mediation process is concluded, or (b) the entry of judgment, or (c) the dismissal of the action, whichever occurs first. (3) If acceptable to the mediator, the court may order an arrangement for the payment of the mediator's fee other than that provided in subrule (D)(2). (4) The mediator's fee is deemed a cost of the action, and the court may make an appropriate order to enforce the payment of the fee. (5) If a party objects to the total fee of the mediator, the matter may be scheduled before the trial judge for determination of the reasonableness of the fee." | |
26 | Minnesota | Minn. Stats. § 484.76 and Minn. Gen. R. Prac. R. 114.11 and Minn. Stats. § 572.41(4) | For Non-Binding Arbitration, Mediation, and More in Civil Cases: Equitable, Fair, Reasonable Compensation for Fees and Expenses Subject to Court Oversight - "484.76 ALTERNATIVE DISPUTE RESOLUTION PROGRAM. Subdivision 1. General. The supreme court shall establish a statewide alternative dispute resolution program for the resolution of civil cases filed with the courts. The supreme court shall adopt rules governing practice, procedure, and jurisdiction for alternative dispute resolution programs established under this section. Except for matters involving family law[,] the rules shall require the use of nonbinding alternative dispute resolution processes in all civil cases, except for good cause shown by the presiding judge, and must provide an equitable means for the payment of fees and expenses for the use of alternative dispute resolution processes." "Rule 114.11. Fees. (a) Setting of Fee. The Neutral shall be paid according to the terms of the agreement with the parties, their attorney, or as ordered by the court. All fees of Neutral(s) for ADR services shall be fair and reasonable. (b) Remedies for Non-Payment. If parties or attorneys fail to pay the Neutral, the court, with notice to the parties and counsel and upon filing of an affidavit from the Neutral or a party, may issue an order granting such relief as the court deems just and proper. The Neutral, in seeking relief under this rule, shall maintain confidentiality as required by these rules. The Neutral has the right to suspend services if not paid in accordance with the court order or agreement with the parties and/or their attorneys." For Mediation in Debtor/Creditor Cases (which seem to be within the scope of Rule 114.11 discussed above): Agreement of the Parties and Mediator - "Subd. 4. Compensation. Prior to commencing mediation[,] the debtor and creditor shall agree with each other and the mediator on the amount and allocation between them of any fee for the mediator's services." | Minnesota is one of the few states which provides for what is essentially reasonable compensation to neutrals as an integral component of court-annexed ADR, which reflects an attitude similar to the Georgia Supreme Court, discussed above, on neutral compensation. That attitude is that while there is definitely a place for the provision of pro bono or low bono/reduced-fee ADR services, court-annexed ADR will not be able to effectively function without neutrals getting paid. In this regard, the Minnesota Supreme Court's Advisory Committee has spoken clearly in comments to the state's General Rule of Practice 114.11, which appears in the columns to the left. "Implementation Committee Comment - 1993 The marketplace in the parties' geographic area will determine the rates to be offered by neutrals for their services. The parties can then best determine the appropriate fee, after considering a number of factors, including availability, experience and expertise of the neutral and the financial abilities of the parties. ADR providers shall be encouraged to provide pro bono and volunteer services to parties unable to pay for ADR processes. Parties with limited financial resources should not be denied access to an ADR process because of an inability to pay for a neutral. Judges and ADR providers should consider the financial abilities of all parties and accommodate those who are not able to share equally in costs of the ADR process. The State Court Administrator shall monitor access to ADR processes by individuals with limited financial resources. Advisory Committee Comment - 1996 Amendment The payment of fees for neutrals is particularly troublesome in family law matters, where the expense may be particularly onerous. Subdivision (d) of this rule is intended to obviate some difficulties relating to inability to pay ADR fees. The advisory committee rejected any suggestion that these rules should create a separate duty on the part of neutrals to provide free neutral services. The committee hopes such services are available, and would encourage qualified neutrals who are attorneys to provide free services as a neutral as part of their obligation to provide pro bono services. See Minn. R. Prof. Cond. 6.1. If free or affordable ADR services are not available, however, the party should not be forced to participate in an ADR process and should suffer no ill-consequence of not being able to do so. Advisory Committee Comment - 2022 Amendments Rule 114.11 provides for the payment of fees to Neutrals. The rule creates a process for seeking an order compelling payment of a Neutral's fees. The rule requires that the Neutral maintain any required confidentiality under the rules, but this requirement is not intended to be a significant constraint, as the agreement (or order) to pay a Neutral, the billings by the Neutral, and the failure to pay can be submitted without disclosure of any confidential information from the ADR process. The rule also confirms that a Neutral is entitled to suspend the provision of services if payments due are not made. Amended Rule 114.10(d)(3) also confirms the right of the Neutral to communicate with the court about unpaid fees." | |
27 | Mississippi | Miss. Code Ann. § 25-7-35 and Mississippi Court-Annexed Rules for Civil Litigation IX. & XV.H. | Arbitration: Reasonable Compensation Fixed by Court - "The court in which the cause is pending, or the chancellor or judge thereof in vacation, shall fix and allow reasonable compensation for commissioners, referees, auditors, and arbitrators; and such compensation shall be taxed and collected as costs in the suit." Mediation: Agreement of the Parties on a Reasonable Fee - "IX. COST OF MEDIATION - The fees and expenses of the mediation shall be established by agreement between the mediator and the parties charged with those fees and expenses. Unless otherwise agreed to by the parties or ordered by the court, the party seeking mediation shall pay the fees and expenses of the mediation. When mediation is ordered by the court on its own motion, the court shall allocate the fees and expenses of the mediation, or such fees and expenses may be taxed as costs of the litigation. The attorney's fees of the parties shall not be included in the fees and expenses of mediation." "H. Fees: A Mediator shall fully Disclose and Explain the Basis of Compensation, Fees, and Charges to the Parties. The parties should be provided sufficient information about fees at the outset of a mediation to determine if they wish to retain the services of a mediator. If a mediator charges fees, the fees shall be reasonable, considering among other things, the mediation service, the type and complexity of the matter, the expertise of the mediator, the time required, and the rates customary in the community." | Mississippi essentially follows the framework of the federal Alternative Dispute Resolution Act of 1998, namely that courts are empowered to set both arbitrator and mediator compensation as they see fit, but unlike the E.D.N.Y., N.D.N.Y., and W.D.N.Y., it would appear that reasonable compensation is left up to each individual judge as opposed to each individual court. | |
28 | Missouri | Missouri Const. Article V, Section 5 and Missouri Sup. Ct. R. 17.03(e) | "V Section 5. Rules of practice and procedure — duty of supreme court — power of legislature. — The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law." For All Types of ADR: Court Decides on Method of Compensation But Not Rate (applies to all types of ADR) - "(e) Each circuit shall adopt necessary local court rules assuring the impartiality of the neutral, allowing for the removal or withdrawal of the neutral, and providing for the method of, but not the rate of, compensation of all neutrals." | For general civil cases, Missouri has a somewhat weird combination of the federal "each district court establishes neutral compensation rules" paradigm with that of other states that provide for reasonable compensation of neutrals. The reference to "method" is likely to a choice among the parties paying for ADR services, the Court itself paying for them, or a combination of both. An exception to the prohibition against the court setting neutral rates is found in family court cases. In this regard, Missouri Rev. Statutes § 487.100 provides: "487.100. Mediation, counseling, home study may be recommended — costs. — In any family court case the judge or commissioner may, on the judge's or commissioner's own motion or, at the request of a party, order or recommend mediation, counseling or a home study. The costs of such mediation, counseling or home study may be assessed against any party at any time and may be taxed as court costs paid by the party against whom costs are taxed or may be paid from the family services and justice fund established pursuant to section 487.170 [and as of 2000, 488.2300]. The amount assessed for such mediation, counseling, or home study shall be such amount as the court determines to be reasonable under the circumstances. The party's ability to pay shall be a consideration when such costs are assessed." | Dorothy Kaldi |
29 | Montana | Montana Code Ann. § 27-5-218 and Montana Code Ann. § 25-21-7(f) and Montana Code Ann. § 46-1-507 | For Arbitration: Arbitrators Set Their Fees - "27-5-218. Fees and expenses of arbitration. Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, must be paid as provided in the award." For Mediation in Certain Appellate-Level Cases: Mediators Set Their Own Fees Except in Cases Where the Amount-in-Controversy and Judgment Issued Are $5,000 or Less - "(f) The parties shall share the mediator's fee and incidental expenses equally. However, in money judgment cases where there is $5,000 or less at issue and the judgment is for $5,000 or less, any mediator appointed by the clerk of the supreme court under section (4)(d) shall serve pro bono, and the mediator's incidental expenses shall be shared equally by the parties. All pro bono appointments shall be so indicated in the order of appointment." For Mediation in Limited Criminal Disputes: Mediators Set Their Own Fees Except Where a Public Defender Has Been Appointed - "46-1-507. Costs. The mediation costs must be paid equally by the defendant and the prosecution, except that if a defendant is eligible for a public defender, the public defender shall pay the mediation costs." | Generally speaking, with the exception of certain specialized cases such as those involving agriculture (see Admin. R. Mont. 4.20.103 - $200/hr. fee for mediation in agriculture disputes), family law, or workers' compensation issues, Montana is a "neutral-sets-his/her-fees" state. In this regard, the State Bar of Montana has the following statement on neutral compensation (at https://www.montanabar.org/page/DisputeResolution): "What Will the DR Cost? Mediators, arbitrators and other practitioners in a DR proceeding will charge varying fees for their services. They may also charge a flat fee for the entire procedure. Parties should consult in advance with the person they select so that the fee arrangement is fully understood by both parties. A common practice is for the parties to share the fee equally. In some cases, the services of a mediator may be free of charge. The Clerk of District Court will have more information available about DR proceedings and costs." Furthermore, as can be seen from the columns on the left, Montana offers mediation in a limited number of CRIMINAL cases (mostly non-violent misdemeanors - See Montana Code Ann. 46-1-502). The paradigm for mediator compensation in these cases essentially follows that for appellate-level mediation, namely that mediators set their own rates, and the parties--assuming none are indigent or otherwise cannot afford mediation--share mediator fees on a pro rata basis. | Dorothy Kaldi |
30 | Nebraska | Nebraska Rev. Stat. § 25-2910 and Nebraska Rev. Stat. § 25-2913(3) and Nebraska Rev. Stat. § 25-2943 and Nebraska Rev. Stat. § 43-2942 | For Arbitration and Mediation: Compensation as Negotiated by State Dispute Resolution Centers Created by Law - "25-2910. Approved center; funding; fees. An approved center may use sources of funds, both public and private, in addition to funds appropriated by the Legislature. An approved center may require each party to pay a fee to help defray costs based upon ability to pay. A person shall not be denied services solely because of an inability to pay the fee." "25-2913. Mediators and restorative justice facilitators; qualifications; compensation; powers and duties. . . . (3) An approved center may provide for the compensation of mediators and restorative justice facilitators, utilize the services of volunteer mediators and restorative justice facilitators, or utilize the services of both paid and volunteer mediators and restorative justice facilitators." "25-2943. Referral of civil cases to mediation or alternative dispute resolution; rules of practice. A court may refer a civil case, including a contested guardianship or contested conservatorship proceeding, to mediation or another form of alternative dispute resolution and, unless otherwise ordered following a hearing upon a motion to object to such referral, may state a date for the case to return to court. Such date shall be no longer than ninety days after the date the order was signed unless the court grants an extension upon request of the parties. Any agreement or resolution made in mediation or another form of alternative dispute resolution shall be voluntarily entered into by the parties. An individual trial court, an appellate court, or the Supreme Court on its own initiative may adopt rules of practice governing the procedures for referral of cases to mediation and other forms of dispute resolution. Such services may be provided by approved centers on a sliding scale of fees under the Dispute Resolution Act [of 1991]." (Emphasis added). For Parenting Cases: "43-2942. Costs. The costs of the mediation process shall be paid by the parties. If the court orders the parties to mediation, the costs to the parties shall be charged according to a sliding fee scale as established by the State Court Administrator." | Nebraska is interesting in that it represents a variant of the Colorado and Massachusetts "court-contracts-with-ADR-provider" model. The home of the Cornhuskers has a network of six dispute resolution centers that can offer a variety of ADR services, notwithstanding that mediation is mentioned most often, and which are at least partially funded by the State. See Nebraska Rev. Stat. 25-2909(1) ("The [Nebraska] [O]ffice [of Dispute Resolution] shall annually award grants to approved centers. It is the intent of the Legislature that centers be established and grants distributed statewide."). The centers then contract with neutrals for the provision of ADR services and apparently have sliding scales established based on the nature and complexity of cases. As noted in the columns to the left, Nebraska Dispute Resolution Centers have the ability to accept not only public funds—and in this regard, note that Nebraska Rev. Stat. 25-2921 establishes a "Dispute Resolution Cash Fund" used for funding the various centers—but private donations as well. As such, Nebraska is an "everyone pitches in to support dispute resolution state", which could be an effective model for compensating New York neutrals, especially if large dispute resolution providers such as AAA, JAMS, and CPR could come together to fund neutral compensation in small scale cases. See also the FAQ on the Cost of Mediation in ADR Handbook: Mediation and Restorative Justice Practices For Judges and Court Staff (Nebraska Office of Dispute Resolution - Updated as of Aug. 2020) at Page 10: "What does mediation cost? ODR-approved centers and private mediators alike set their own rates, and these reflect a range of rates. Nebraska’s centers set rates based on per person or per group costs, and fees are disclosed prior to commencing mediation. The Dispute Resolution Act provides that no one is to be denied access to mediation based upon inability to pay; thus, centers offer a sliding scale for fees based on the Federal Poverty Guidelines." The FAQ on one of the six centers' websites, Nebraska Mediation Center, is consistent: "How much does mediation cost? The Nebraska Mediation Center determines charges on a per session rate based on a variety of factors such as complexity of the issues and any preparatory work that may be necessary. During your initial conversation(s) with a staff member, your fees will be discussed and an estimate of cost will be determined before proceeding. As a nonprofit mediation center, the Nebraska Mediation Center will not deny mediation services based on inability to pay. If your income and household size qualify you for a sliding scale fee, your fee will be based on your ability to pay." | Dorothy Kaldi |
31 | Nevada | Nev. Rev. Stat. 38.258 (Part of Uniform Arbitration Act of 2000) and Supreme Court of Nevada Arbitration Rule 24 and Supreme Court of Nevada Mediation Rule 10 | Legislative Authority for Supreme Court to Issue ADR Rules: "1. The Supreme Court may authorize the use of settlement conferences and other alternative methods of resolving disputes, including, without limitation, mediation and a short trial, that are available in the county in which a district court is located: (a) In lieu of submitting an action to nonbinding arbitration pursuant to NRS 38.250; or (b) During or following such nonbinding arbitration if the parties agree that the use of any such alternative methods of resolving disputes would assist in the resolution of the dispute. 2. If the Supreme Court authorizes the use of an alternative method of resolving disputes pursuant to subsection 1, the Supreme Court shall adopt rules and procedures to govern the use of any such method." For Arbitration (Non-Binding): $100/hr. with Cap of $1,000/case in a Wide Range of Civil Cases - "24. Fees for arbitrators. (A) Arbitrators appointed to hear cases pursuant to these rules are entitled to be compensated at the rate of $100 per hour to a maximum of $1,000 per case unless otherwise authorized by the commissioner [each local court can appoint one, per Rule 2] for good cause shown. If required by the arbitrator, each party to the arbitration shall submit, within 30 days of request by the arbitrator, a sum of up to $250 as an advance toward the arbitrator’s fees and costs. If a party fails to pay the required advance, the party may be subject to sanctions, including an award dismissing the complaint or entry of the non-complying party’s default. . . . ." For Mediation: Flat Fee of Up to $1,000/case in a Wide Range of Civil Cases - "Rule 10. Fees and costs for mediators. (A) Mediators shall be entitled to remuneration of up to $1,000 per case, unless otherwise authorized by the commissioner for good cause shown. (B) Mediators are entitled to recover the costs, not to exceed $250, that the mediator reasonably incurs. Costs recoverable by the mediator are limited to: (1) Reasonable costs for facsimiles; (2) Reasonable costs for photocopies; (3) Reasonable costs for long distance telephone calls; (4) Reasonable costs for postage; (5) Reasonable costs for travel and lodging; and (6) Reasonable costs for secretarial services. (C) Fees and costs of the mediator are paid equally by the parties unless otherwise stipulated. (D) If required by the mediator, each party to a case within the program shall deposit with the mediator, within 15 days of request by the mediator, a sum of up to $250 as an advance toward the mediator’s fees and costs. If any party fails to pay their portion of the mediator’s fees and costs within the time prescribed in this subsection, the district court shall, after giving appropriate notice and opportunity to be heard, enter a judgment and a writ of execution against the delinquent party for the amount owed by the party to the mediator, together with any fees and costs incurred by the mediator in the collection of the fees and costs. (E) If one of the parties to the mediation is an indigent person who was exempted under NRS 12.015 from paying a filing fee, the mediator may not collect a fee or costs from any party to the mediation." | Supreme Court of Nevada Arbitration Rule 23 also provides for payment of up to $250 of certain arbitrator-incurred costs/expenses by the parties that are similar to those for which mediators may seek reimbursement (see Rule 10 in the "Compensation Amount or Details" column). Nevada also has a dedicated Foreclosure Mediation Program ("FMP") that pays a flat rate of $400/case. See FMP Overview. | Dorothy Kaldi |
32 | New Hampshire | N.H. Constitution Art. 73-a and N.H. Superior Ct. Civ. R. 33(h)(1), (2) and N.H. Supreme Ct. Proc. R. 12-A(5) and N.H. Supreme Ct. Admin. R. 48-B(5)(a), (b)(ii) | Legislative Authority for Supreme Court to Issue ADR Rules: "[Art.] 73-a. [Supreme Court, Administration.] The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law." For Arbitration: Arbitrators Set Their Fees - "(h) Arbitration Panel. . . . (1) When the parties choose arbitrator(s) from the list of approved paid arbitrators, the parties shall notify the arbitrator(s) and request that the arbitrator(s) provide the parties with a schedule of fees and expenses. (2) Unless the court orders or the parties otherwise agree, arbitrators who are chosen from the list of approved paid arbitrators shall be compensated as follows. In the event a single arbitrator is selected, the parties shall equally share the costs of the arbitrator. When there are two parties and they select a three-person panel, each party shall pay for the arbitrator selected by the party and share the fees of the third panel member. When there are three parties and they select a three-person panel, each party shall be responsible for the arbitrator selected by the party. In the event there are more than three parties, the parties shall pay a pro rata share of the entire arbitration panel's fees." For Mediation: Flat Fee of $225 Per Party in a Wide Range of Civil Cases Unless Otherwise Ordered by Court - "(5) Any order referring a case to mediation shall impose a fee of $225.00 per party to be paid to the mediation and arbitration fund. This fee will be used to pay mediator compensation, and is not refundable. On its own motion, or upon motion of the parties, the court may order an individual $225.00 fee to apply to multiple plaintiffs or defendants, if under the circumstances of the case, the court determines that the per party fee would cause undue hardship if it were applied to individual parties, or if one fee for multiple parties on the same side is deemed equitable by the court. Parties who are indigent may petition the court for waiver of the fee." For Mediation of Family Law Cases: $300 for First Four Hours as Allocated by Court and Thereafter Sliding Scale of Fees Based Upon Income Set By Court Rule - "Rule 48-B. Family Mediator Fees . . . (5) Fees. (a) First Four Hours of Mediation. For court-connected mediation permissible under RSA 461-A:7 and RSA 458:15-c, the fee is $300, and includes the first four hours of mediation services and up to one hour of administrative work related to the mediation. The court may allocate responsibility for the fee between the parties as the court determines. . . . (b) Additional Mediation Beyond Four Hours . . . (ii) If additional hours are agreed upon, each party’s fee will be determined by the party’s individual gross annual income. Each party shall pay the mediator at the hourly rate listed below, unless the court orders one party to pay all or a portion of the other’s fees or payments from an asset, as justice requires. $ 10,000 and under - $ 15 hour; $ 10,001 – $ 15,000 - $ 20 hour; $ 15,001 – $ 20,000 - $ 25 hour; $ 20,001 – $ 30,000 - $ 35 hour; $ 30,001 – $ 35,000 - $ 45 hour; $ 35,001 – $ 40,000 - $ 55 hour; $ 40,001 – $ 50,000 - $ 65 hour; $ 50,001 – $100,000 - $ 75 hour; $ 100,001 and above - $ 100 hour." | In family law mediations, cancellation fees are established by law. See N.H. Supreme Ct. Admin. R. 48-B(6)(c) ("(c) Non-appearance. If a party receives notice but does not appear for a scheduled mediation session, or cancels or reschedules the mediation session less than 2 business days before the session, the case may be scheduled for the next court event. The non-appearing party shall pay the mediator a failure-to-appear fee of $120. If neither party appears, each party shall pay the mediator a failure-to-appear fee of $60. The mediator has discretion to waive failure-to-appear fees." Also, New Hampshire's Superior Court—the state's trial-level court of general jurisdiction—has a specific rule mandating ADR for practically every type of civil case that is filed. See N.H. Superior Ct. Civ. R. 32(a) ("(a) Cases for Alternative Dispute Resolution. (1) All civil cases shall be assigned to ADR, with the exception of those exempted in paragraph (2). (2) The following categories of civil actions are exempt from the requirements of this rule. (a) Actions where the parties represent by joint motion that they have engaged in formal ADR before a neutral third party prior to suit being filed. (b) Actions exempted by the court on motion and for good cause, but only when said motion is filed within 180 days of the court ordered service date."). Finally, New Hampshire has a special Business Court Mediation program for cases having an amount-in-controversy more than $50,000 in which mediators are permitted to charge market rates. See https://www.courts.nh.gov/resources/mediation/superior-court-adr/civil-cases/business-court-mediation for more information. ("How does the process work? . . . 2. If a mediator is chosen from the list of approved mediators for the business court it is important to note that they are all 'market rate' neutrals. This means that they will be compensated at the hourly rate posted on their bio sheets for the work that they are doing in the case. There are no volunteer mediators on this specialized roster. Parties may select a neutral who is not on the court's lists of approved neutrals if the parties agree on the choice of the neutral."). | Dorothy Kaldi |
33 | New Jersey | N.J. Ct. Rule 4:21-A-2(e) - Arbitration of Certain Civil Actions: Compensation of Arbitrators and N.J. Ct. Rule 1:40-4(b) - Complementary Dispute Resolution Programs: Compensation and Payment of Mediators Serving in the Civil and Family Economic Mediation Programs and Guidelines for the Compensation of Mediators (Appendix XXVI) | For Arbitration (which is mandatory in certain types of cases, including but not limited to personal injury cases): Set Per Diem or Hourly Rates Based Upon Whether Arbitrators Are Assigned or Are Stipulated to by the Parties - "(e) Compensation of Arbitrators. (1) Assigned Arbitrators. Except as provided by subparagraph (2) hereof, a single arbitrator designated by the civil division manager, including a retired judge not on recall, shall be paid a per diem fee of $350. Two-arbitrator panels shall be paid a total per diem fee of $450, to be divided evenly between the panel members. (2) Stipulated Arbitrators. Arbitrators stipulated to by the parties pursuant to R. 4:21A-2(a) shall be compensated at the rate of $ 70 per hour but not exceeding a maximum of $350 per day. If more than one stipulated arbitrator hears the matter, the fee shall be $70 per hour but not exceeding $450 per day, to be divided equally between or among them. The parties may, however, stipulate in writing to the payment of additional fees, such stipulation to specify the amount of the additional fees and the party or parties paying the additional fees." For mediation, two hours of free time divided between preparation, preliminary conference, and session time, all paid by the parties but "subject to court review and allocation to create equity" - "(b) Mediators on the court's Rosters of Civil and Family Mediators shall serve free for two hours in a mediation that is court-ordered. The two free hours shall be divided equally between (a) reasonable preparation time, administrative tasks, the organizational telephonic conference, and (b) an initial mediation session." | The overall compensation scheme is not as simple as the excerpt in the left column might lead one to believe for mediation. For instance, with proper disclosures via a mediation agreement, preparation time in excess of one hour is compensable, as is detailed in the Guidelines for the Compensation of Mediators (Appendix XXVI), even before the initial mediation session takes place. per Guideline 15: "In a complex case, if the parties agree that it is reasonable that preparation, initial administration and the organizational telephone conference should exceed one hour, they may agree to compensate the mediator for such time in excess of one hour before an in-person mediation session is held." However, the same Guidelines also clearly provide for (and right "off the bat" in Guideline 1) a default of "no compensation whatsoever" or arguably even expenses, including but not limited to travel time and expenses: "Travel time may not be included as part of the free first two hours. Unless otherwise provided in these guidelines, no fee, retainer or other payment may be charged or paid prior to the conclusion of the two free hours." Guideline 11 goes even further to require mediators to actually take losses on expenses that are typically paid to attorneys in litigation (unless they agree otherwise in advance with the parties): "11. Mediator's Expenses: Unless the parties otherwise agree in writing in advance following full disclosure, mediators may not charge for travel costs or time, use or rental of facilities, paralegal expenses, food, photocopying, postage, conference calls or other expenses. Note: The parties are responsible for the costs of the organizational conference call as provided in Guideline 6 above." As such, New Jersey Court Rule 1:40-4(b) is one of the more complicated mediation compensation (or, arguably, anti-compensation) statutes in effectively incorporating the Guidelines for the Compensation of Mediators, which is referenced five times in its one paragraph of text, into it. | |
34 | New Mexico | N.M. Stat. Ann. § 44-7A-22(d) and N.M. Stat. Ann. § 34-6-45(B) and N.M. Second Judicial Dist. Local R. 2-603(IV)(D) and N.M. Second Judicial Dist. Local R. 2-602(M) and N.M. Third Judicial Dist. Local R. 3-601(B)(2) and N.M. Thirteenth Judicial Dist. Local R. 13-602(J) | For Arbitration by Prior Agreement of Parties: Arbitrator Determines His/Her Financial Destiny - "44-7A-22. Remedies; fees and expenses of arbitration proceeding. . . . (d) An arbitrator's expenses and fees, together with other expenses, must be paid as provided in the award." Authority for District Courts to Establish ADR Programs - "34-6-45. District courts; alternative dispute resolution; fee. . . . B. A judicial district may establish an alternative dispute resolution program by court rule approved by the supreme court. Parties shall pay the cost of the alternative dispute resolution program pursuant to a sliding fee scale approved by the supreme court. The sliding fee scale shall be based on ability to pay. The fee shall be paid to the district court to be credited to the fund." For Court-Annexed Mandatory Non-Binding Arbitration in Civil Cases in the Second Judicial District for Money Damages Only with Amount-in-Controversy Not Exceeding $25,000: $100 Per Case Paid by the Court - "D. Compensation. The court shall compensate arbitrators in the amount of one hundred dollars ($100.00) per case. An arbitrator is entitled to compensation when the arbitrator files an award or the arbitration proceedings are otherwise concluded or when the arbitrator is excused from appointment. The arbitrator shall submit a written request for compensation to the court alternatives director within thirty (30) days after the arbitrator is entitled to compensation. Failure to submit a request shall be deemed a waiver of compensation. Arbitrators compensated by the parties under Subsection IV(C)(3) [which allows court-approval of arbitrators selected by the parties, who then must compensate them by agreement] of this rule shall not be compensated by the court." For Court-Annexed Mandatory Settlement Conferences in Most Civil Cases in the Second Judicial District Outside of "Settlement Weeks": Reasonable Compensation Ordered by Court - "M. Compensation to settlement facilitator. Compensation shall not be required for any settlement facilitator for a settlement conference conducted as part of a settlement week. The court may order the parties to pay reasonable compensation to the facilitator for a settlement conference not conducted as part of a settlement week. Judges shall not receive compensation for serving as settlement facilitators." For Court-Annexed Mandatory Settlement Conferences in Civil Cases in the Third Judicial District at Any Time: "Reasonable Compensation" as Determined by the Court in the Absence of Party Agreement - "(2) Payment to facilitator. If the parties agree to a facilitator, they are presumed to agree to pay that facilitator’s fees. In the event that the facilitator is appointed by the court, the parties are expected to inquire about what that facilitator charges. If the facilitator’s fees are deemed unreasonable, either party may motion the court for a determination of an appropriate fee or for another facilitator assignment. Each party shall pay directly to the settlement facilitator the fee due from the party within thirty (30) calendar days from the date of the settlement conference." Four Court-Annexed Mandatory Settlement Conferences or Mediations in Civil Cases in the Thirteenth District at Any Time: "Reasonable Compensation" as Determined by the Court Via Reference to a Sliding Fee Scale Approved by the Supreme Court in the Absence of Party Agreement But Collected by the Court - "J. Compensation to mediators and settlement facilitators. The court may order the parties to pay reasonable compensation to the mediator or settlement facilitator. Mediators and settlement facilitators may be compensated in one of the following ways: (1) Parties unable to afford the full cost of ADR may request the court assign a mediator or settlement facilitator willing to accept reimbursement at an amount set by the court. Parties who receive a mediator or settlement facilitator paid out of court funds shall each pay a fee according to the sliding fee scale adopted under these local rules, and approved by the Supreme Court. ADR shall not commence until the fee owed by each party is paid in full to the clerk of the court. The parties shall be responsible for providing a copy of the receipt of the required court fee to the mediator or settlement facilitator before ADR begins. The fee may be waived at the discretion of the court. (2) The parties may select a mediator or settlement facilitator and negotiate a fee that shall be shared among the parties." | New Mexico has court-annexed ADR based upon local court rules (i.e., there is no state-wide ADR program) provided for by an enabling statute. Three examples of compensation schemes found in the Second, Third, and Thirteenth Judicial Districts with respect to settlement conferences are set forth in the left columns. Interestingly, New Mexico's Second and Third Judicial Districts do not distinguish between mediation and settlement conferences, effectively treating them as identical dispute resolution processes, whereas New Mexico's Twelfth Judicial District specifically mentions mediation and provides for mediator compensation based on a sliding fee scale. See N.M. Twelfth Judicial Dist. Local R. 12-603(D) ("D. Mediation fees. Each party shall pay a fee to the court clerk’s office to offset the costs of the alternative dispute resolution program before mediation has begun. The parties shall fill out a financial information sheet and their fee shall be determined by using the sliding fee scale approved by the Supreme Court."); see also N.M. Fourth Judicial Dist. Local R. 4-601(B)-(C) (distinguishing between "mediation" and "settlement facilitation" while also providing for neutral compensation based on a sliding fee scale that establishes a set absolute minimum fee of $10/hr. per party unless otherwise determined by the Court). Also, court-annexed arbitration does not exist outside the Second Judicial District, although until 2016, the Third Judicial District used to have such a program with arbitrators essentially determining their fees pursuant to court oversight. See N.M. Third Judicial Dist. Local R. 3-708(D) (2016), which is discussed in William P. Lynch, "Problems with Court-Annexed Mandatory Arbitration: Illustrations from the New Mexico Experience", 32 N.M.L. Rev. 181, 212 (2002) ("In contrast, the Third District requires the parties to pay fees to the arbitrator based upon an unpublished fee schedule and allows the arbitrator to apply for additional compensation if she feels that the fee is inadequate. This provision presents several obvious problems. First, the District is requiring parties to pay an additional unspecified fee to participate in a program mandated by the court. Although the legislature has approved payment of an additional fifteen-dollar docket fee to create an ADR fund to pay for the cost of operating ADR programs, there is no legislative approval for requiring the parties to pay the arbitrator's fee. Second, because compensation for the arbitrator will not vary greatly with claim size, this additional cost will impose a greater burden on plaintiffs with small claims. Third, the District needs to publish its fee schedule so that all parties have notice of the fees to be paid to the arbitrators."). | Dorothy Kaldi |
35 | New York | Rules of the Chief Judge 28.10(a) and C.P.L.R. 7513 and No Enabling Legislation for Mediation in Existence - See https://www.change.org/NY-ADR-Compensation and See also the various articles at the bottom of this Table of State Neutral Compensation Statutes for various perspectives from both NY-based and non-NY-based ADR professionals on the general need for neutral compensation. | For Court-Ordered Arbitration in Low-Amount-in-Controversy (<=$6,000 Outside of NYC; <=$10,000 Inside of NYC) Civil Cases Where Only Money Damages Are Sought: As Set by the Court But Only to the Extent There is Money Available - "Section 28.10 Compensation of arbitrators. (a) The Chief Administrator shall provide for the compensation, including expenses, payable to each arbitrator to the extent of money available to the administrative office for the courts for this purpose. Claims for such compensation shall be made to the commissioner after entry of the award on forms prescribed by the Chief Administrator, except that a claim for compensation of the chairperson of a panel also may be made where the action is settled or withdrawn after a panel hearing date has been scheduled but before the hearing is commenced, and a claim for compensation of an arbitrator other than a chairperson may be made where the action is settled or withdrawn within three days of the date scheduled for the hearing. The commissioner shall forward all claims approved by him to the Chief Administrator. Any arbitrator may apply to the commissioner for reimbursement of extraordinary expenses necessarily incurred by him in the same manner as provided for application for ordinary compensation." For Arbitration by Prior Agreement of Parties: Arbitrator Determines His/Her Financial Destiny But Subject to Court Oversight - "§ 7513. Fees and expenses. Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including attorney's fees, incurred in the conduct of the arbitration, shall be paid as provided in the award. The court, on application, may reduce or disallow any fee or expense it finds excessive or allocate it as justice requires." For Mediation: No compensation until time limits (ranging from 90 minutes to 4 hours) have been exceeded. Compare to E.D.N.Y. Local Civil Rules 83.7(b) and 83.8(f) and its Trial Ready Rapid Mediation Pilot Program that provide for arbitrator compensation at a rate of "$250 for their services in each case . . . by the courts" and mediator compensation at a rate of "$600 for the first four hours or less of the actual mediation" and "$250 per hour thereafter" by the parties but without any preparation time being compensable. (With respect to arbitration, the E.D.N.Y. Local Civil Rules also provide that if "an arbitration hearing is protracted, the certifying Judge may entertain a petition for additional compensation. If a party requests three arbitrators[,] then each arbitrator shall be compensated $100 for service. The fees shall be paid by or pursuant to the order of the Court subject to the limits set by the Judicial Conference of the United States."). Compare also to N.D.N.Y. (which appears to have only a mandatory mediation program) and W.D.N.Y. (which provides for arbitration as an available dispute resolution but does not set arbitrator compensation rates). N.D.N.Y.: "Court approved hourly rates are $150 per hour for the first two hours of the initial mediation session. If necessary the mediator may charge an additional $150/hour for up to two hours of preparation time for cases which require substantial preparation. Thereafter, the rate is capped at $325 per hour." (https://www.nynd.uscourts.gov/adr-program). See also Section 4.4 of N.D.N.Y. General Order #47: Mandatory Mediation Program (at https://www.nynd.uscourts.gov/sites/nynd/files/general-ordes/GO47_0.pdf). W.D.N.Y.: "Mediators shall receive $150/hour for the first two hours of the initial mediation session, without compensation for preparatory time. Thereafter, Mediators shall receive no more than their Court-approved hourly rates for time spent in mediation and for preparation authorized or reasonably anticipated by the parties or their counsel between sessions. This subsection shall not apply to Mediators who are not selected from the Court’s Mediator Panel List." (Section 5.4 of W.D.N.Y. ADR Plan - Revised May 11, 2018). The S.D.N.Y., which does not appear to have arbitration component, does not provide for mediator compensation (i.e., it is completely pro bono) and actively prohibits the receipt of any compensation. "All mediators shall serve without compensation and shall not solicit or accept payment for any case undertaken as a panel mediator." (S.D.N.Y. Mediation Procedure 16(c) (July 21, 2020)). | Does the New York Constitution allow for courts to bypass the legislature in establishing neutral compensation schemes for court-annexed ADR programs that do not involve any provision of free time? It might, insofar as Art. VI. § 30 provides with respect to the delegation of legislative power to courts to create their own rules: "Nothing herein contained shall prevent the adoption of regulations by individual courts consistent with the general practice and procedure as provided by statute or general rules." This is likely how compensation for court-ordered mandatory arbitration was established as per Rules of the Chief Judge Section 28.10 cited in the columns to the left. NYC Market Standard (from "TIPS FOR BECOMING A MEDIATOR IN NYC"): "Average fees in New York City are $300 per hour for private mediations, whether in family, workplace or commercial cases. Attorney mediators and mediators who are in greater demand may charge more. Federal and other mediation rosters generally pay $500-$800 per case or $100-$200 per hour. Mediators may charge for all time spent on a case or only for time spent in session. Travel and other out of pocket fees are generally paid by the parties." (See https://www.jjay.cuny.edu/DRC/TIPS%20FOR%20BECOMING%20A%20MEDIATOR%20IN%20NYC) The "black sheep" position of the S.D.N.Y. with respect to neutral compensation (i.e., that court goes so far as to actively prohibit the receipt of any compensation) relative to the E.D.N.Y., N.D.N.Y., and W.D.N.Y. has been critcized as of 2018. "Lawyers and judges expect to be paid for their work. Both the Western and Northern District rules require that mediators be paid, though they also require pro bono work so that parties who cannot afford to pay can also participate. The Eastern District program provides for limited compensation. The Southern District program has no compensation, and all mediators participating in the program work for free. This should change. The experience of the Western and Northern District programs is that lawyers and litigants quickly come to appreciate the benefits of the automatic court annexed referrals to mediation. Mediator cost, typically split between parties, is rarely a significant cost of the process. Given the amount of prep work, mediation work, and often follow up work required for a successful mediation, the courts should ensure that mediators in their programs are properly compensated." Gary P. Shaffer, Automatic Court Annexed Mediation in New York’s Federal District Courts: Sometimes Numbers Don’t Lie at 9 (NYSBA 2018). | |
36 | North Carolina | N.C. Gen. Stats. § 7A-37.1(a)-(c2) and S. Ct. N.C. Rules for Court-Ordered Arbitrations 4(b) and 5 and N.C Gen. Stats. § 1-569.21(d) and N.C. Gen. Stats. § 7A-38.1(k) and S. Ct. N.C. Rules for Mediated Settlement Conferences and Other Settlement Procedures 4(d), 5, and 7 | For Mandatory Non-Binding Arbitration in Most Civil Cases in District (as Opposed to Superior) Court - $100 Per Case, Split by the Parties, with Fee Shifting Possible in Appeals in Small Claims Cases - "§ 7A-37.1. Statewide court-ordered, nonbinding arbitration in certain civil actions. (a) The General Assembly finds that court-ordered, nonbinding arbitration may be a more economical, efficient and satisfactory procedure to resolve certain civil actions than by traditional civil litigation and therefore authorizes court-ordered nonbinding arbitration as an alternative civil procedure, subject to these provisions. (b) The Supreme Court of North Carolina may adopt rules governing this procedure and may supervise its implementation and operation through the Administrative Office of the Courts. These rules shall ensure that no party is deprived of the right to jury trial and that any party dissatisfied with an arbitration award may have trial de novo. (c) Except as otherwise provided in rules promulgated by the Supreme Court of North Carolina pursuant to subsection (b) of this section, this procedure shall be employed in all civil actions in district court, unless all parties to the action waive arbitration under this section. (c1) Except as provided in subsection (c2) of this section, in cases referred to nonbinding arbitration as provided in this section, a fee of one hundred dollars ($100.00) shall be assessed per arbitration, to be divided equally among the parties, to cover the cost of providing arbitrators. Fees assessed under this section shall be paid to the clerk of superior court in the county where the case was filed and remitted by the clerk to the State Treasurer. (c2) In appeals in small claims actions under Article 19 of Chapter 7A of the General Statutes, if (i) the arbitrator finds in favor of the appellee, (ii) the arbitrator's decision is appealed for trial de novo under G.S. 7A-229, and (iii) the arbitrator's decision is affirmed on appeal, then the court shall consider the fact that the arbitrator's decision was affirmed as a significant factor in favor of assessing all court costs and attorneys' fees associated with the case in both the original action and the two appeals, including the arbitration fee assessed under subsection (c1) of this section, against the appellant." The North Carolina Supreme Court's Rules for Court-Ordered Arbitrations (citations in left column) further detail payment of fees, including but not limited to the ability of arbitrators to obtain liens and judgments in non-payment situations. For Arbitration as Agreed to by the Parties But Enforced by the Court - Arbitrator Determines His/Her Financial Destiny - "§ 1-569.21. Remedies; fees and expenses of arbitration proceeding. . . . (d) An arbitrator's expenses and fees, together with other expenses, shall be paid as provided in the award." For Court-Ordered Mediated Settlement Conferences in Superor Court Civil Cases: Administrative Fee of $175 Per Case Plus $150 Per Hour (see "Comments" column for more information about other types of cases) - "§ 7A-38.1. Mediated settlement conferences in superior court civil actions. . . . (k) Costs of mediated settlement conference. - Costs of mediated settlement conferences shall be borne by the parties. Unless otherwise ordered by the court or agreed to by the parties, the mediator's fees shall be paid in equal shares by the parties. For purposes of this section, multiple parties shall be considered one party when they are represented by the same counsel. The rules adopted by the Supreme Court implementing this section shall set out a method whereby parties found by the court to be unable to pay the costs of the mediated settlement conference are afforded an opportunity to participate without cost. The rules adopted by the Supreme Court shall set the fees to be paid a mediator appointed by a judge upon the failure of the parties to designate a mediator." The North Carolina Supreme Court's Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions (citations in left column) further detail payment of fees. Rule 7(b) establishes court-appointed mediator compensation for Superior Court civil cases: "(b) By Court Order. When a mediator is appointed by the court, the parties shall compensate the mediator for mediation services at the rate of $150 per hour. The parties shall also pay the mediator a one-time, per-case administrative fee of $175, due upon appointment." | North Carolina's court-annexed/court-ordered ADR structure is quite robust such that full coverage of every ADR option offered in the state is beyond the scope of this Table, which focuses primarily on civil disputes. Nonetheless, in addition to Resolution Systems Institute's comprehensive webpage on the state's court-annexed/court-ordered ADR statutes and rules, the North Carolina Judicial Branch has a wonderful webpage outlining court-annexed/court-ordered ADR options in the state, including but not limited to mediation in criminal cases. Here are the relevant excerpts concerning compensation for: Non-Binding Arbitration - "Who pays for the arbitrator? There is a $100 fee for arbitration. You will be notified of this fee and the amount you owe in the “Notice of Arbitration Hearing.” You must pay this fee by taking the form to the cashier in the clerk of court’s office to pay your share. The clerk will accept cash, a cashier’s check, or a money order. If you do not pay, the fee will become a judgment against you. If you cannot afford to pay, you can file this form with the clerk of court asking to be found indigent." Mediation - "How much does mediation cost? For superior court matters, family financial matters, or matters before the clerk of court, if you, the other party, or the attorneys involved choose your mediator, you will discuss the fee with the mediator. If your mediator is appointed by the court for a superior court matter or family financial matter, he or she will be paid $150 per hour plus a one-time $175 administrative fee. A court-appointed mediator for a clerk matter will be paid $150 per hour plus a one-time $150 administrative fee. Unless otherwise agreed by the parties or ordered by the court, the fee is split equally between the parties. You may be asked to pay the administrative fee up front. All other fees will be due at the end of your conference. For matters pending in district criminal court, the court will assign a mediator from a community mediation center to mediate the case. The mediation fee is $60, to be paid before the mediation by the defendant, or as agreed upon by the parties. If you cannot afford to pay your mediator, you can file the appropriate form with the clerk of court asking the court to waive the mediator’s fee. If the court decides that you are not able to pay the fee, you will not be required to pay for the mediator." Interestingly, the comment to Rule 7 of the North Carolina Supreme Court's Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions bars court-appointed mediators from requesting reimbursement for out-of-pocket expenses but actually encourages them to charge postponement/cancellation fees in accordance with Rule 7(e) and further allows for the recovery of expenses where parties fail to attend mediation sessions without good cause. "Comment to Rule 7(b). Court-appointed mediators may not be compensated for travel time, mileage, or any other out-of-pocket expenses associated with a court-ordered mediation. It is not unusual for two or more related cases to be mediated collectively. A mediator shall use his or her business judgment in assessing the one-time, per-case administrative fee when two or more cases are mediated together, and set his or her fee according to the amount of time that he or she spent in an effort to schedule the matters for mediation. The mediator may charge a flat fee of $175 if scheduling was relatively easy, or multiples of that amount if more effort was required. Comment to Rule 7(e). Nonessential requests for postponements work a hardship on parties and mediators and serve only to inject delay into a process and program designed to expedite litigation. It is expected that mediators will assess a postponement fee in all instances where a request does not appear to be absolutely warranted. Moreover, mediators are encouraged not to agree to a postponement in instances where, in the mediator’s judgment, the mediation could be held as scheduled. Comment to Rule 7(f). If a party is found by a senior resident superior court judge to have failed to attend a mediated settlement conference without good cause, then the court may require that party to pay the mediator’s fee and related expenses." As such, North Carolina, unlike many states, including but not limited to New York, firmly establishes that the judicial system will protect neutrals against abuse and waste of their time. | Dorothy Kaldi |
37 | North Dakota | N.D. Century Code § 32-29.3-21(4) and N.D. Rules of Court 8.8(a), (b) and N.D. Century Code § 14-09.1-02 and N.D. Rules of Court 8.1(c)(5) | For Arbitration by Prior Agreement of Parties: Arbitrator Determines His/Her Financial Destiny - "32-29.3-21. Remedies - Fees and expenses of arbitration proceedings. . . . 4. An arbitrator's expenses and fees, together with other expenses, must be paid as provided in the award." "RULE 8.8 ALTERNATIVE DISPUTE RESOLUTION. (a) Scope. Parties to civil suits are encouraged to participate in alternative dispute resolution (“ADR”) before commencing a case or at an early stage of the case; and all parties in civil cases must discuss early ADR participation and the appropriate timing of such effort. . . . (b) Procedure. Within 14 days or such other time the court may direct prior to the initial pretrial conference held under N.D.R.Civ.P. 16, a Rule 8.8 statement to the court must be filed with the district court (in the form shown in appendix F) detailing the ADR participation that has occurred or will occur or if it will not occur. In a divorce, the statement may be incorporated into the joint informational statement under N.D.R.Ct. 8.3(a). The statement must certify that the parties have discussed ADR participation with each other and that the parties’ lawyers have discussed ADR with their clients, and, if an ADR process will occur, the time by which it will be completed. The party or parties who do not agree to participate must certify in the statement that they have discussed ADR with counsel or, if not represented, that the party is aware of ADR. If a party or parties choose not to participate in ADR, the statement must contain the reason for not participating. If the parties agree to an ADR process but cannot agree on a neutral, the court may designate a person from the ADR neutral roster maintained by the State Court Administrator’s office." "14-09.1-02. Mediation authorized - Exception. In any proceeding involving an order, modification of an order, or enforcement of an order for the custody, support, or visitation of a child in which the custody or visitation issue is contested, the court may order mediation at the parties' own expense." Mediation in Cases Involving Contested Custody, Support, or Visitation of a Child: Court Pays Up to Six Hours of Preparation and Mediation Time, and Parties May Purchase Additional Hours from Mediator at Annual Rate Set by Court - "RULE 8.1 FAMILY MEDIATION PROGRAM . . . (c) Mediation Process. . . . (5) Mediation in General. (A) The program will automatically provide up to six hours of combined pre-mediation[,] orientation[,] and mediation. Mediators will be compensated at a rate to be set annually by the state court administrator [which is currently a maximum of $170/hr. - see Forms B and C mentioned below]. (B) Under the program, the parties will individually attend a pre-mediation orientation and screening with a designated mediator, and at least one joint mediation session. Counsel for represented parties may participate in mediation proceedings. (C) If the parties require more than six hours of sessions, they may purchase additional mediation sessions from the mediator, who will offer mediation at the hourly rate set annually by the state court administrator. (D) Parties may also apply to the program administrator for additional mediation sessions using Form B and may apply for a fee waiver or sliding scale fee using Form C [attached to Form B]. The program administrator will determine whether a party is eligible for a fee waiver or fee reduction based on party income according to a schedule adopted by the Supreme Court. If the parties qualify for a fee reduction and have been approved for additional mediation, any gap between the hourly rate set annually by the state court administrator and the parties' ability to pay will be paid to the mediator under this program." | IMPORTANT: North Dakota is NOT a presumptive/mandatory ADR state such that parties are only "encouraged" to use ADR at the state level on a voluntary basis. As such, with the exception of the family program listed in the left columns, neutral compensation in civil disputes is entirely a function of agreement of the parties similar to binding arbitration matters (which are not included in the state definition of "ADR"). | Dorothy Kaldi |
38 | Ohio | Ohio Rev. Code § 1907.262(A) and Ohio Rev. Code § 2335.02 and Rule 15(A)(1), (2)(c), (2)(d)(ii) Rules of Superintendence for the Courts of Ohio and Rule 16.21(A)(6), Rules of Superintendence for the Courts of Ohio and Local Rule Guide - Courts of Appeals, Courts of Common Pleas General, Domestic Relations, and Probate Divisions, Municipal Courts, and County Courts Model Rule 12 | "Section 1907.262 | Rules for procedures for resolution of disputes. (A) A county court may establish by rule procedures for the resolution of disputes between parties. Any procedures so adopted shall include, but are not limited to, mediation. If the court establishes any procedures under this division, the court may include in the court's schedule of fees and costs under section 1907.24 of the Revised Code a reasonable fee, that is to be collected on the filing of each civil or criminal action or proceeding, and that is to be used to implement the procedures, and the court shall direct the clerk of the court to charge the fee." [See also Ohio Rev. Code § 1901.262(A), which applies to municipal courts]. For Arbitration in Valuation Cases Where Arbitrators Are Appointed by the Court: "Reasonable and Proper" Compensation - "Section 2335.02 - Compensation of appraisers and arbitrators. In any cause, matter, or proceeding arising in any court of record, where appraisers, commissioners, or arbitrators are appointed by such court to make or procure an appraisement or valuation of any property, real or personal, such appraisers, commissioners, or arbitrators shall receive, on application to such court, such compensation as the court deems reasonable and proper in addition to the amount specified by law and such compensation shall be taxed in the costs of such cause, matter, or proceeding in the same manner as other costs are now taxed." For Arbitration in Other Civil Cases: Courts Given Authority Over Arbitration Compensation Issues (in a roundabout way) - "(A) Arbitration in civil cases. (1) The judge or judges of general divisions of courts of common pleas, of municipal courts, or of county courts shall consider, and may adopt, a plan for the mandatory arbitration of civil cases. The plan shall specify the amount in controversy that will require submission of the case to arbitration and arbitration shall be required in cases where the amount in controversy does not exceed that specified sum. . . . (2) Every plan for the mandatory arbitration of civil cases adopted pursuant to this rule shall be filed with the Supreme Court and shall include the following basic principles: . . . (c) Report and award. Within thirty days after the hearing, the board or the single arbitrator shall file a report and award with the clerk of the court and forward copies to all parties or their counsel. The report and award, unless appealed, shall be final and have the legal effect of a verdict upon which judgment shall be entered by the court. (d) Appeals. Any party may appeal the award to the court if, within thirty days after the filing of the award with the clerk of court, the party does both of the following: . . . (ii) Reimburses the county or municipal corporation for all fees paid to the arbitrator or arbitrators in the case or pays the fees directly to the arbitrator or arbitrators, unless otherwise directed by the court." For Mediation in Civil Cases: Enabling Legislation Allowing Local Courts in the State to Set Rules and Procedures as They Deem Appropriate With an Eye Towards Equal Sharing of Fees Imposed by the Court - "(A) General. A court that elects to use mediation shall adopt a local rule governing mediation. The local rule shall do all of the following: . . . (6) Address other provisions as the court considers necessary and appropriate." In this regard, Model Rule 12 from the Ohio Courts' Local Rule Guide provides: "12. Fees and Costs. The court may impose upon the parties fees and costs for mediation. If there is a fee for mediation, unless otherwise agreed by the parties, the mediation fees shall be shared equally. The court may waive fees and costs for an indigent party. Mediation shall not be ordered if a party is indigent, unless the mediation is available at no cost to the party." | Ohio seems to adopt a laissez-faire state legislative attitude when it comes to neutral compensation, leaving compensation details up to individual courts. The Supreme Court of Ohio's Dispute Resolution Section thus has the following comment about court-annexed dispute resolution in Ohio: "Court Support - Regulation of the practice of mediation through statewide rules or statutes has been minimal, by design. One Supreme Court Rule (Rule 16, Rules of Superintendence for the Courts of Ohio) provides guidance to the trial courts in establishing domestic relations and juvenile court parenting agreement mediation programs and qualifications for these mediators. Most courts establish basic program guidelines through local rules." An example of such a local rule can be found in Local Rule 10 of the Court of Common Pleas, General Division in Summit County, which provides for mandatory arbitration in cases where amounts-in-controversy are less than $50,000: "10.16 Compensation of Arbitrators. (A) Members of the Board. Each member of the Board of Abitration who has signed an award or files a minority report, shall receive, as compensation for his/her services in each case, a fee of $70.00 per half day. When more than one case arising out of the same transaction is heard at the same hearing(s), it shall be considered one case in determining compensation of arbitrators. In cases requiring hearings of unusual complexity, the assigned Judge, upon motion of the members of the Board and for cause shown, may allow additional compensation. The members of the Board shall not be entitled to receive their fee until after filing the Report and Award with the assigned Judge. Fees paid to arbitrators shall not be taxed as costs nor follow the award as other costs. (B) Chairman. The Chairman shall also receive compensation of $20.00 per half day for each case heard by the Board, in addition to the compensation in Rule 10.16(a). (C) Source of Funds. All compensation for arbitrators shall be paid from funds of Summit County, upon proper warrant, which have been allocated for the operation of the Summit County Common Pleas Court." Another example of a local rule concerning the compensation of court-appointed mediators can be found in Local Rule 5.22(G) of the Common Pleas Court of Butler County, Ohio, which provides: "(G) Compensation of Mediators. Each mediator shall receive a lump sum compensation in the amount of $500.00 per case. Mediators shall not receive additional compensation for subsequent sessions. All mediators shall complete an order to pay mediator fees upon completion of the mediation. Compensation for a mediator shall be paid, upon proper authorization, from the funds of Butler County, Ohio, which have been allocated for the operation of the Common Pleas Court of Butler County, Ohio. If the mediation is unsuccessful, the cost of the mediation shall be taxed as costs through the Clerk of Courts. The Clerk shall then reimburse the appropriate General Division account with the refunded costs." | |
39 | Oklahoma | 12 Okla. Stats. § 1872(d) and 12 Okla. Stats. § 1831(B) and 12 Okla. Stats. § 1834 | IMPORTANT: Oklahoma does NOT have general presumptive/mandatory court-annexed/court-ordered ADR. While district courts can refer cases to mediation, they only have the power to do so upon agreement of the parties. See the "Comments" column for more information. For Arbitration: Arbitrator Determines His/Her Financial Destiny - "Section 1872 - Punitive Damages - Attorney Fees and Expenses of Arbitration - Other Remedies - Arbitrator's Fees. . . . . D. An arbitrator’s expenses and fees, together with other expenses, shall be paid as provided in the award." For Mediation: Courts Do Not Set or Otherwise Get Involved in Issues of Neutral Compensation, Which Are for the Parties to Determine - "B. The Legislature has previously enacted measures designed to create programs for and encourage the use of mediation in resolving disputes involving citizens of this state. These measures provide guidelines and standards for qualifications of mediators and their use in resolving disputes. Over the years since the first of these measures was enacted, there has developed a significant number of trained and experienced mediators, some of whom work solely in volunteer programs under the Dispute Resolution Act and some of whom provide mediation services on a "for fee" basis, either solely or in addition to volunteer work. The power of the parties to a dispute to settle their own dispute with the help of a neutral person being the essence of mediation, there now exists a need to clarify the choice available to disputants to select a mediator. . . . Section 1834 - Mediator Compensation. Except in those instances in which a specific statute or rule prohibits compensation of mediators, the program authorized by Section 12 of this act [12 Okla. Stats. § 1832] may provide for appropriate compensation of the mediator." Note: For an example of a specific rule that prohibits mediator compensation, see Rules and Procedures for the Dispute Resolution Act, Appendix A - Code of Professional Conduct for Mediators at B.4.a.(5) ("(5) The mediator shall not accept money nor anything of value for services, other than the collection of fees listed elsewhere in the Oklahoma Rules and Procedures for Dispute Resolution Act."). | Oklahoma, like a number of other states, has a network of free dispute resolution centers established for the mediation of disputes that are geographically-divided throughout the state as well as fourteen state agencies offering specialized mediation programs. See generally https://adrs.oscn.net/ for more information. While district courts have the power to refer parties to mediation (see 18 Okla. Stats. § 1823 ("Any district court, by agreement of the parties, may refer any civil case, including any domestic relations case, or any portion thereof for mediation.")), they do not have the power to compel such referrals or to otherwise force parties to use the aforementioned free dispute resolution centers (although why they would not want to do so when they are free—unless, perhaps, if a case is particularly complicated and requires an experienced private mediator (See Rule 7(C) of the Rules and Procedures for the Dispute Resolution Act ("C. If a program encounters disputes which, or parties who, require attention beyond the scope of the services provided by the program, it may make referrals.")—is anybody's guess). The long and short of Oklahoma neutral compensation is simply this: neutrals can choose to participate in local volunteer or compensated programs (or both) as they wish—the establishment of which are provided for by statute (see 12 Okla. Stats. § 1832))—provided that they qualify for admission to such programs' rosters. However, the Oklahoma courts do not get involved in matters of neutral compensation (at least where mediation is concerned). | Dorothy Kaldi |
40 | Oregon | Oregon Rev. Stats. § 36.420 and Oregon Uniform Trial Ct. R. 13.120 and Oregon Rev. Stats. § 36.185 and Oregon Jud. Dep't Court-Connected Mediator Qualifications Rules - R. 1.1(3)(c) (Ch. J. Order No. 05-028) | For Arbitration in Cases Where the Amount in Controversy is $50,000 or Less: State Law Gives Local Courts Authority to Set Arbitrator Compensation Split by the Parties Provided That Indigent Parties Are Not Required to Advance Expenses - "36.420 Notice of arbitration hearing; open proceeding; compensation and expenses. . . . (3) The compensation of the arbitrator and other expenses of the arbitration proceeding shall be the obligation of the parties or any of them as provided by rules made under ORS 36.400 (Mandatory Arbitration Programs). However, if those rules require the parties or any of them to pay any of those expenses in advance, in the form of fees or otherwise, as a condition of arbitration, the rules shall also provide for the waiver in whole or in part, deferral in whole or in part, or both, of that payment by a party whom the court finds is then unable to pay all or any part of those advance expenses. Expenses so waived shall be paid by the state from funds available for the purpose. Expenses so deferred shall be paid, if necessary, by the state from funds available for the purpose, and the state shall be reimbursed according to the terms of the deferral." "13.120 COMPENSATION OF ARBITRATOR. (1) The arbitration commission shall establish a compensation schedule for arbitrators. If the arbitrator suggests that extraordinary conditions justify a different fee, and the parties concur, the fee may be adjusted accordingly. If the parties, or any of them, do not concur, the arbitrator shall direct an inquiry to the court for determination of the appropriate fee. (2) Within 14 days of the appointment of the arbitrator, each party must tender to the arbitrator a pro rata share of the preliminary payment for the arbitrator. Any deposit in excess of the arbitrator’s actual fee will be refunded to the parties. Regardless of whether the arbitration hearing is conducted, the parties must pay a proportionate share of the arbitrator’s fee. The arbitrator must submit to each party an itemized statement. (3) Relief from the payment of arbitration fees, in whole or in part, as provided for in ORS 36.420(3) must be applied for immediately upon a case or a small claim becoming eligible for arbitration. The court will provide the arbitrator with a copy of any order waiving or deferring all or any part of the fees. (4) If a party fails to tender to the arbitrator the party’s pro rata share of the preliminary payment under subsection (2) of this rule and fails to obtain a waiver or deferral of arbitration fees under subsection (3) of this rule, the arbitrator may preclude the party from appearing or participating in the arbitration. The failure of a party to appear or participate in the arbitration proceeding by reason of failing to pay the arbitrator fee or obtain a waiver or deferral of the fee does not affect the ability of the party to appeal the arbitrators decision and award in the manner provided by ORS 36.425. (5) Any dispute as to the amount of the arbitrator’s fee must be submitted to the court. (6) The arbitrator’s fee may be considered a recoverable item of costs. (7) At the conclusion of the arbitration process, the court may enter a judgment in the arbitrator’s favor and against any party who has not paid the arbitrator’s fee in accordance with the schedule established under paragraph (1)." IMPORTANT: While courts in Oregon can refer general civil cases to mediation, they are powerless to compel parties to engage in the mediation process should they make objection to that process. Oregon Rev. Stats. § 36.185 thus provides in pertinent part: "When a party to a case files a written objection to mediation with the court, the action shall be removed from mediation and proceed in a normal fashion." For Mediation: State-Wide Rules Explicitly Disclaim Applicability to Mediator Compensation, Leaving Local Courts to Issue Applicable Orders or Rules - "Sections 1.1 to 3.6 of these rules: . . . (3) Do not: . . . (c) In any way establish any requirements for compensation of mediators." | Oregon has state-level enabling statutes that permit local courts to fashion rules setting neutral compensation at different rates. In this aspect, Oregon's state neutral compensation scheme is similar to that of the federal courts (i.e., 28 U.S.C. § 658). Here are some examples of local orders or rules establishing neutral compensation schemes: Columbia County Circuit Court Supplementary Local Rules 12.051 (Feb. 1, 2021) - "12.051 COMPENSATION OF MEDIATORS - (1) In issues subject to mandatory mediation under these rules, Columbia County will compensate the mediator at the rate of $75.00 per hour up to a maximum of eight (8) hours per case, including one (1) hour for time spent preparing written memoranda or agreements. The funding source will be fees collected pursuant to ORS 107.615 and 21.112. [The County will compensate the mediator for one hour for attending the mediation orientation.] (2) In issues not involved in mandatory mediation, the parties may agree to mediate with the court-appointed mediator, but the compensation arrangements must be between the parties and the mediator, as they may agree in writing, and the compensation rate must be negotiated by and between the parties and the mediator. (3) If the parties select a mediator who is not on the court-approved list, the compensation must be fixed by agreement between the parties and the mediator, and will be the responsibility of the parties." Douglas County Circuit Court: Presiding Judge's Order No. 21-06 (July 1, 2021) - "Pursuant to UTCR [Uniform Trial Court Rule] 13.120[,] the Arbitration and Mediation Commission has set the fees for the appropriate dispute resolution programs as follows: Arbitration fee at $150.00 per hour for a maximum of 8 hours per case. One additional hour may be charged as travel time. Civil Mediation fee at $100.00 per hour for a maximum of 6 hours per case. Domestic Relations financial mediation fee at $100.00 per hour for a maximum of 6 hours per case. Settlement Conference fee at $125.00 per hour for a maximum of 8 hours per case. One hour of the 8 hours may be charged as travel time." Marion County Circuit Court: Supplementary Local Rules 12.155, 13.055 (Feb. 1, 2020) - "12.155 COMPENSATION OF MEDIATOR (Civil). Compensation of the mediator shall be the same as for arbitration, as to rate, payment timelines and allocation of cost, unless agreed to otherwise between all parties and the mediator. . . . 13.055 SPECIFICATION OF ARBITRATORS HOURLY RATE. Arbitrators shall specify the agreed-to hourly rate, if it is any different from the norm, when they are initially appointed by the court and have contact with the parties. Arbitrators that charge more than the court’s normal arbitration fees [$125/hr. with a maximum cap of 8 hours for most civil cases] shall be identified on the arbitration lists available to litigants." | Dorothy Kaldi |
41 | Pennsylvania | Pa. Const. Art. 5 § 10(c) and 201 Pa. Code Rule 103(c)(1), (d)(1) and 42 Pa. Consol. Stats. § 7361 and Pa. R. Civ. P. 1308(a)(2) and Pa. R. Civ. P. 1042.21(a)(2) | "§ 10. Judicial administration. . . . (c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, . . . and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions. . . ." "(c) Rules of judicial administration adopted by other courts and by agencies of the System. (1) As used in this subdivision, ‘‘local rule’’ shall include every rule, administrative order, regulation, directive, policy, custom, usage, form, or order of general application, however labeled or promulgated, which is adopted or enforced by a court, council, committee, board, commission or other agency of the unified judicial system to govern judicial administration. This subdivision shall also apply to any amendment of a local rule. . . . (d) Rules of procedure adopted by other courts of the System. (1) For the purpose of this subdivision, the term ‘‘local rule’’ shall include every rule, administrative order, regulation, directive, policy, custom, usage, form or order of general application, however labeled or promulgated, which is adopted by a court of common pleas and the Philadelphia Municipal Court to govern practice and procedure. This subdivision shall also apply to any amendment of a local rule. . . . Official Note - The purpose of subdivisions (c) and (d) is to further the policy of the Supreme Court to implement the Unified Judicial System under the Constitution of 1968 and to facilitate the statewide practice of law under the Court’s general rules. Local rules of judicial administration and local rules of procedure should not repeat general rules or statutory provisions verbatim or substantially verbatim nor should local rules make it difficult for attorneys to practice law in several counties. The provisions of subdivision (d) apply to local rules of procedure, but not to case-specific orders." "§ 7361. Compulsory arbitration. (a) General rule.--Except as provided in subsection (b), when prescribed by general rule or rule of court such civil matters or issues therein as shall be specified by rule shall first be submitted to and heard by a board of three members of the bar of the court. (b) Limitations.--No matter shall be referred under subsection (a): (1) which involves title to real property; or (2) where the amount in controversy, exclusive of interest and costs, exceeds $50,000. (c) Procedure.--The arbitrators appointed pursuant to this section shall have such powers and shall proceed in such manner as shall be prescribed by general rules. (d) Appeal for trial de novo.--Any party to a matter shall have the right to appeal for trial de novo in the court. The party who takes the appeal shall pay such amount or proportion of fees and costs and shall comply with such other procedures as shall be prescribed by general rules. In the absence of appeal the judgment entered on the award of the arbitrators shall be enforced as any other judgment of the court. For the purposes of this section and section 5571 (relating to appeals generally) an award of arbitrators constitutes an order of a tribunal." "Rule 1308. Appeal. Arbitrators’ Compensation. Notice. (a) An appeal from an award shall be taken by . . . (2) payment to the prothonotary of the compensation of the arbitrators not exceeding fifty percent of the amount in controversy, which shall not be taxed as costs or be recoverable in any proceeding; provided that the court, in an appropriate case, upon petition may permit the appellant to proceed in forma pauperis." Similar to Rule 1308 above, Pennsylvania Rule of Civil Procedure 1042.21(a)(2), which applies to the mediation of medical professional liability (i.e., medical malpractice) actions acknowledges the concept of neutral compensation but does not set forth any specific rate of compensation. "Rule 1042.21. Medical Professional Liability Actions. Motion for Settlement Conference or Mediation. (a) Prior to the exchange of expert reports in a medical professional liability action, a health care provider may file a motion with the court requesting a settlement conference or court ordered mediation. . . . (2) If the motion requests court ordered mediation, the moving party shall describe in the motion the mediation which is sought and shall pay for the mediation." Invoking the statutory authority above, various local courts have differing neutral compensation arrangements. See the "Comments" column to the right for more information. | Pennsylvania in some ways works like the federal system, wherein each district court under 28 U.S.C. § 658 is enabled to set its own compensation rules. A combination of a state Constitution provision and rule-making statutes set forth in the columns to the left provide for general authority for lower-level trial courts--the Courts of Common Pleas--to fashion neutral compensation schemes that vary by county according to local rules established by each of the courts. Three examples of these compensation schemes include: Fayette County Court of Common Pleas Local Rules 212.5(b) and 1302(e) - "(b) Payment of Mediators [in certain types of civil actions - see Rule 212.5(c) and (e) for more specifics]. (1) The parties shall pay the mediator directly. The court assumes no responsibility for the supervision or enforcement of the parties' agreement to pay for mediation services. (2) Any charges relating to the mediator's services shall be shared equally by the parties. (3) The mediator shall be paid a mediation fee of One Hundred and Seventy-Five ($175.00) Dollars per hour, divided equally among all of the parties to the mediation. A deposit of One Hundred and Seventy-Five ($175.00) Dollars shall be paid by each party within twenty (20) days of the order directing mediation. Failure to pay the deposit by all parties shall result in the cancellation of the mediation and shall subject the offending party to sanctions pursuant to Pa. R. Civ. P. 4019. Failure to pay the balance due twenty (20) days after receipt of the mediator’s bill shall subject the offending party to sanctions pursuant to Pa. R. Civ. P. 4019. (4) Except as provided herein, a mediator shall not accept anything of value from any source for services provided under the court-annexed mediation program. (e) Each arbitrator shall be paid the sum of Two-hundred ($200.00) Dollars a day for each morning and afternoon session attended or One Hundred ($100.00) [Dollars] for each morning or afternoon session attended. In cases requiring lengthy hearings or involving unusual questions of law or fact, the Court may, on petition of the arbitrators, increase their fees to an amount that will reasonably compensate them for necessary services performed. . . ." Monroe County Local Rules Rules 212.5(c) and 1302(6) are somewhat similar but with mediator compensation set at either an agreed-upon rate by the parties or two-hundred ($200.00) dollars per hour and arbitrator compensation set at a variable rate fixed by the Court in every case. ("(c) Payment of Mediators . . . (3) The mediator shall be paid on an hourly basis at the mediator’s regular hourly rate or, in the absence of a standard hourly rate, at the rate of $200.00 per hour. The mediator shall disclose to the parties and/or their attorneys the rate at which his/her charges will be billed. . . . . 6. The compensation for each member of the Board of Arbitrators to be paid by the County shall be established from time to time by the Court. When more than one hearing becomes necessary, additional amounts may be allowed at the discretion of the Court upon petition by the Chairperson on behalf of the Board. If there is concurrence, the motion shall include a certification that all participants are in concurrence with the motion and shall set forth a hearing date mutually agreed upon by counsel, the parties and the arbitrators."). Finally, Potter County Local Rules L1301(c) and L1341(b)(2) are somewhat unique in that arbitrators can have their fixed compensation reduced or even DISALLOWED by the Court for cause, and there is no fixed rate of compensation for mediators. ("(c) Each member of the Board of Arbitration who has signed the report or files a minority report shall receive as compensation for his services in each case a fee of one hundred fifty dollars ($150.00). The chairman of the board shall receive one hundred seventy-five dollars ($175.00). In cases requiring hearings of unusual duration or involving questions of unusual complexity, the Court, on petition of the members of the Board and for cause shown, may allow additional compensation. The Court may also, on petition of any party to a case, on cause shown and to prevent injustice, reduce the amount of such compensation or disallow compensation entirely . . . . (b)(2) Except by agreement of all parties or as otherwise ordered by the Court, the cost of the mediator’s services shall be divided evenly amongst the parties. Compensation shall be paid directly to the mediator upon the conclusion of mediation or as otherwise agreed by the parties and the mediator. Failure to pay the mediator shall be brought to the attention of the Court."). Pennsylvania also has an appellate-level mandatory mediation program for its Commonwealth Court (see 210 Pa. Code § 69.501), but mediations are conducted by judges of that court and no compensation separate from their salaries is provided for them. | Dorothy Kaldi |
42 | Rhode Island | R.I. Gen. Laws § 8-6-5 and Superior Court Rules Governing Arbitration of Civil Actions 2(c) and R.I. Gen. Laws § 10-16-5(b) | IMPORTANT: It does not appear that Rhode Island has mandatory/presumptive mediation of civil cases at the trial level beyond small claims cases. Rather, only non-binding arbitration (see below) is mandatory/presumptive. For Arbitration Mandated by Court: Up to $500 Per Case Collected by the Court From the Parties - "§ 8-6-5. Arbitration of civil actions. The presiding justice of the superior court may promulgate rules and regulations providing for compulsory and/or noncompulsory nonbinding arbitration of such category or categories of civil actions filed in, or appealed to, the superior court as he or she shall determine. The matter shall be heard by a single arbitrator who shall be selected by mutual agreement of the plaintiff(s) and defendant(s). If, after thirty (30) days, the plaintiff(s) and defendant(s) are unable to agree upon the selection of an arbitrator, a justice of the superior court shall select the arbitrator upon request in writing from either party. The costs of arbitration shall be borne by the Rhode Island state court system and a reasonable cost of the arbitration, not to exceed five hundred dollars ($500) per case, may be assessed and apportioned to each of the parties by the superior court pursuant to rules and regulations promulgated by the presiding justice of the superior court consistent with § 8-6-6. The assessed costs received from the parties shall be deposited into the general fund. Any party dissatisfied with the decision of the arbitrator may demand a trial by jury if one was timely claimed in the complaint or answer, or a trial by judge if no jury trial was claimed. The decision of the arbitrator shall not be admissible at the trial. The court may require a party who rejects an arbitrator's award and demands a trial to post a three hundred dollar ($300) filing fee and pay a technology surcharge [up tp $25.00] in accordance with § 8-15-11." Practically-speaking, court-selected arbitrators are currently paid $400 per case for certain case types (see Superior Court Rules Governing Arbitration of Civil Actions 1(a) for exclusions, one of which is any case where the claimed damages are greater than $100,000), but the Superior Court has discretion to increase the compensation where cases last more than a day. "(c) Fees and Expenses. Arbitrators shall be paid for their services (including but not limited to preparation, hearing and rendering of an award or decision) at the rate of $400.00 per case. Arbitrators shall be paid promptly when they file their awards with the court. Arbitrators may be reimbursed for reasonable expenses actually and necessarily incurred in connection with arbitration hearings. Arbitrators may petition the court and on a showing of good cause may be granted an increased fee in cases lasting longer than a day." For Small Claims Mediation: Neutral Compensation Is Left to the Discretion of Each District Court - "(b) The chief judge of the district court shall be authorized to establish a system of mandatory mediation for all small claims actions other than actions relating to book accounts for a sum certain. The judges of the district court shall be authorized to make such rules as may be necessary for the establishment of said mandatory mediation system." (See the "Comments" column to the right for more information about neutral compensation in small claims cases, which are heard in district courts.). | In Rhode Island, it is interesting to see that if parties don't accept an arbitrator's award, there is an effective penalty imposed on the loser. As such, while there is a right to trial de novo in arbitration cases such that mandatory arbitration is non-binding, the right is somewhat curtailed. This may raise due process or other constitutional issues way beyond the scope of this Table. Rhode Island's one federal district court, pursuant to its authority under 28 U.S.C. § 658, provides for one hour of "free time" beyond free preparation time for both court-ordered non-binding arbitration and mediation in a manner close to the way that New York's "90 minutes free time" compensation schemes work, thereby establishing federal Rhode Island neutrals to be effective slaves for at least one hour. Thereafter, compensation for non-judicial/private neutrals is at a rate of no more than $200/hr. as agreed to by the parties. See Amended Alternative Dispute Resolution Plan U.S. Dist. Ct. for the Dist. of R.I. VI.C. ("Thereafter, the parties are equally responsible for the neutral’s compensation at a rate agreed to by the parties, but not to exceed $200 per hour."). In contrast, where the parties in a case agree to proceed to arbitration such that it is not court-ordered (and note there are some exclusions to the types of cases which the parties may agree to arbitrate, particularly cases where the amount of claimed damages is greater than $150.000 (see id. at X.Arbitration.1.A.)), compensation for arbitrators is set at $200/hr. and specifically includes preparation time. See id. at X.Arbitration.Arbitrators.C. ("Arbitrators shall be paid for their services (including but not limited to preparation, hearing, and rendering of an award or decision) at the rate of $200.00 per hour, equally split between the parties. Arbitrators shall be paid promptly when they file their awards with the court. Arbitrators may be reimbursed for reasonable expenses actually and necessarily incurred in connection with arbitration hearings."). With respect to small claims mediation, Rhode Island's district courts have an arrangement with the Center for Mediation & Collaboration Rhode Island ("CMCRI") for CMCRI to provide mediation services in such cases for no fee on account of CMCRI having received a grant from the Rhode Island Supreme Court. See the "MEDIATING IN DISTRICT COURT" Section of the CMCRI Website ("Because we receive a grant from the Rhode Island State Supreme Court, this service [i.e., mediation of small claims cases in district court] is offered to you free of charge.") and Rhode Island Courts, FAQ: District Court Small Claims Mediation Program (Rev. Oct. 2017) at 2 (same). The Supreme Court of Rhode Island also has an appellate mediation program (see generally Supreme Court of Rhode Island Rule 35 (rev. Jan. 2021)) for most civil cases, but currently, it is staffed only by retired justices of the Supreme Court who mediate on a volunteer basis. See Supreme Court of Rhode Island, Appellate Mediation Program Brochure ("Presently, retired justices serve as mediators at no cost to the state. As the program progresses, other qualified mediators may be approved and added."). A Family Court mandatory mediation program is also offered in certain cases but does not offer any compensation to its neutrals. See Rhode Island Judiciary: Family Court Mediation Program ("The Family Court offers a free court-based mediation program to assist parties in settling cases through a process that is fair, cooperative, and respectful."). | Dorothy Kaldi |
43 | South Carolina | Article V, Sections 4 and 4A of the South Carolina Constitution grant the Chief Justice of the S.C. Supreme Court the power to administer the courts and make rules, provided that the latter are not rejected by at least 3/5 (60%) of the Members of the Houses of the S.C. General Assembly and S.C. Judicial Branch ADR Court Rule 9 | For Arbitration, Early Neutral Evaluation, and Mediation Where Parties Select Mediator: Agreement of the Parties - "Rule 9 - Compensation of Neutral: (a) By Agreement. When the parties stipulate the neutral, the parties and the neutral shall agree upon compensation." For Mediation Where Court Selects Mediator: $200 Per Hour with One-Hour Prep Time Limit and Limited Expense Reimbursement Unless Indigent Status Is Granted - "(b) By Appointment. When the mediator is appointed by the Clerk of Court pursuant to Rule 4(c), Rule 4(d)(2)(B), or Rule 4(d)(2)(C) of these rules, the mediator shall be compensated by the parties at a rate of $200 per hour, provided that the court-appointed mediator shall charge no greater than one hour of time in preparing for the initial ADR conference. Travel time shall not be compensated. Reimbursement of expenses to the mediator shall be limited to: (i) mileage costs accrued by the mediator for travel to and from the ADR conference at a per mile rate that is equal to the standard business mileage rate established by the Internal Revenue Service, as periodically adjusted; and (ii) reasonable costs advanced by the mediator on behalf of the parties to the ADR conference, not to exceed $150. An appointed mediator may charge no more than $200 for cancellation of an ADR conference. (c) Payment of Compensation by the Parties. Unless otherwise agreed to by the parties or ordered by the court, fees and expenses for the ADR conference shall be paid in equal shares per party. Payment shall be due upon conclusion of the conference unless other prior arrangements have been made with the neutral, or unless a party's application for waiver has been granted by the court prior to mediation. (d) Indigent Cases. Where a mediator has been appointed pursuant to paragraph (b), a party seeking to be exempted from the payment of neutral fees and expenses based on indigency shall file an application for indigency prior to the scheduling of the ADR conference. The application shall be filed on a form approved by the Supreme Court or its designee. Determination of indigency shall be in the discretion of the Chief Judge for Administrative Purposes or his designee. In cases where leave to proceed in forma pauperis has been granted, a party is exempt from payment of neutral fees and expenses, and no application is required to be filed." | South Carolina does not have court-ordered arbitration or early neutral evaluation but only court-ordered mediation. As such, it is only where mediation is concerned that courts will deal with compensation issues. See S.C. Judicial Branch ADR Court Rule 3(a) ("(a) Mediation. All civil actions filed in the circuit court, all cases in which a Notice of Intent to File Suit is filed pursuant to the provisions of S.C. Code 15-79-125(A), and all contested issues in domestic relations actions filed in family court, except for cases set forth in Rule 3(b) or (c), are subject to court-ordered mediation under these rules. Except for exempt cases, in all civil actions filed in the circuit court and all contested issues in domestic relations actions filed in family court, the parties may agree, in lieu of mediation, to conduct an arbitration or early neutral evaluation under these rules. The parties may select their own neutral and may mediate, arbitrate or submit to early neutral evaluation at any time.") Three Other Points: 1) Section 63-3-530(A)(39) of South Carolina Code of Laws explicitly provides for the availability of ADR processes in family disputes. ("(A) The family court has exclusive jurisdiction: . . . (39) to require the parties to engage in court-mandated mediation pursuant to Family Court Mediation Rules or to issue consent orders authorizing parties to engage in any form of alternate dispute resolution which does not violate the rules of the court or the laws of South Carolina . . . ."). 2) Compensation for the mediation of probate disputes comes in at $175/hr. pursuant to South Carolina Supreme Court Order No. 2007-08-23-01 but with more prep. time than one hour allowed in the discretion of the Court. ("Rule 9(b). By Court Order - Mediation. . . . The mediator's rate shall not exceed $175 per hour. Reasonable charges by the mediator for his or her preparation time beyond one hour shall be permitted at the discretion of the Probate Court Judge. Reasonable expenses, including but not limited to travel expenses, shall be subject to reimbursement at the discretion of the Probate Court Judge. An appointed mediator may charge no more than $175 for cancellation of a mediation settlement conference."). 3) South Carolina's ADR Rules are meant to be uniform for the state, with local variations only permitted after the S.C. Supreme Court approves of same. See S.C. Judicial Branch ADR Court Rule 23 ("Rule 23 - Local Rule Making - These rules shall be uniform for all counties. Local rules may be allowed only upon approval of the Supreme Court. . . . "). | |
44 | South Dakota | S. Dakota Codified Laws § 16-3-1 and S. Dakota Codified Laws § 15-6-83 and S. Dakota Codified Laws § 15-6-76 and S. Dakota Codified Laws § 21-25A-22 | "16-3-1. Law governing making of rules. In the exercise of its constitutional and statutory rule-making power[,] the Supreme Court of South Dakota shall proceed as provided by this chapter and as may be provided by its own rules." "15-6-83. Rules by courts of record. . . . A majority of the judges in each circuit court may make and amend rules governing practice not inconsistent with the rules contained in this chapter. Any rule, or amendment or repeal thereof, adopted pursuant to this section shall become effective upon being filed with and approved by the Supreme Court. Upon being approved, all such rules, amendments or repeals thereof shall be filed by the Supreme Court with the code counsel, who shall publish them as an appendix to Title 15 of the code." "15-6-76. Settlement conference--Alternative dispute resolution. Unless the parties have agreed to engage in alternative dispute resolution or are required to do so by contract or statute, the court may not, by order or local rule, require the parties to engage in a settlement conference or any other form of alternative dispute resolution." For Arbitration by Prior Agreement of Parties: Arbitrator Determines His/Her Financial Destiny - "21-25A-22. Payment of expenses of proceedings. Except as provided in §§ 21-25B-22 and 21-25B-25, unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of arbitration, shall be paid as provided in the award." | As can be seen from the columns to to the left, South Dakota is one of the few states were court-annexed presumptive/mandatory ADR is PROHIBITED as a matter of law. There does not appear to be any statute or rule that would provide for such a process in general civil cases. That's not to say that in the future, things could not change. In this regard, there is the ability for courts in local intergovernmental actions (i.e., county vs. county) under South Dakota Codified Laws § 15-6-72.1 to order "alternative dispute resolution, other than binding arbitration, on such terms as the court may order." Then, in setting neutral compensation rates, the South Dakota legislature may take a cue from cases involving medical services performed by healthcare providers who have signed arbitration agreements with patients. There, state-affiliated arbitrators are paid by the state $100/day from a specific health care services arbitration account set aside for neutral compensation See South Dakota Codified Laws § 21-25B-25 ("Per diem and expenses of panel members--Compensation of arbitration officer--Payments from health care services arbitration account. Each member of the panel shall receive one hundred dollars per day plus expenses at the same rate as other state officers as compensation for his services on the panel. The presiding judge of the circuit court shall fix the compensation of the arbitration officer. All compensation shall be paid out of the health care services arbitration account."). | Dorothy Kaldi |
45 | Tennessee | Tenn. Code Ann. § 29-5-116 and Tenn. Sup. Ct. R. 31, Sects. 8, 13, and 15(c) | Arbitration: Minimum of $5 Per Day and Agreement of Parties - "29-5-116. Compensation of arbitrators and umpire. Arbitrators and the umpire, if one, shall be entitled to five dollars ($5.00) for each day they were actually engaged in their duties, or to such greater sum as the parties may have in the submission agreed, or as they may in subsequent writing stipulate." Mediation (except in certain matrimonial/divorce cases falling under Tenn. Sup. Ct. R. 38): "Reasonable Compensation Subject to Court Oversight and a 20-Hour Pro Bono Threshold" - "Section 8. Costs. (a) The costs of any Rule 31 Mediation, including the costs of the services of the Rule 31 Mediator(s) may, at the request of the Rule 31 Mediator(s), be charged as court costs. The request to charge the costs of the services of the Rule 31 Mediator(s) should be submitted to the Court by filing same with the clerk of the court. If the parties appeal to the appellate court(s), the parties may advise the appellate court in their briefs whether the Rule 31 Mediator(s) requested that the cost of the Rule 31 Mediator's services be included in the court costs. (b) The Court may, in its sound discretion, waive or reduce the costs of a Rule 31 Mediation. . . . Section 13. Compensation. Rule 31 Mediators are entitled to be compensated at a reasonable rate for participation in Court-Ordered Mediations, except pro bono proceedings pursuant to Section 15 of this Rule. . . . [Section 15](c) Pro Bono Service. As a condition of continued listing, each Rule 31 Mediator shall, if requested by a Court, conduct up to three pro bono mediations per year, not to exceed 20 total hours for all mediations. At the initiation of a pro bono mediation, the Court may, upon a showing by one or more parties of an inability to pay, direct that the Rule 31 Mediator serve without pay. No Rule 31 Mediator will be required to conduct more than three pro bono proceedings or serve pro bono for more than 20 hours in any continuous 12-month period. A Rule 31 Mediator should aspire to render a minimum of fifty (50) hours of pro bono mediation services per year." | Except for the 3-mediation/20-hour pro bono limit, Tennessee' s neutral compensation scheme for case evaluations, judicial settlement conferences, mini-trials, non-binding arbitrations, and summary jury trials is the same as for mediations, namely "Reasonable Compensation Subject to Court Oversight." See Tenn. Sup. Ct. R. 31A, Sects. 8 and 12. Supreme Court Rule 38 "Divorcing Parent Education and Mediation Fund" cases involve partial mediator compensation paid by courts and have a specific maximum fee and expense structure. "Section 2. Alternative Dispute Resolution Services . . . (c) Maximum fee. (1) Services Rendered. Qualified Neutrals who receive moneys under this Rule shall be limited to a maximum fee of $50.00 per hour ($25.00 per parent per hour) for time reasonably spent in actual alternative dispute resolution sessions with the parents ("in-session time") and $40.00 per hour ($20.00 per parent per hour) for time reasonably spent in preparation for the alternative dispute resolution sessions and for time reasonably spent in preparing agreements or proposed agreements reached during the alternative dispute resolution sessions ("out-of-session time"), a portion of which may be reimbursed from the Divorcing Parent Education and Mediation Fund. The total number of hours that may be reimbursed from the Divorcing Parent Education and Mediation Fund shall not exceed ten (10) hours in aggregate for both in-session and out-of-session time. (2) Expenses Incurred. A Qualified Neutral shall be reimbursed for certain necessary expenses incurred directly in the rendering of the alternative dispute resolution process. (i) Expenses for long distance telephone calls, copying, printing, and travel within the state, approved by the court as reasonably necessary, will be reimbursed. Claims for reimbursement for long distance telephone calls must be supported by a log showing the date the call was made, the person or office called, the purpose of the call, and the duration of the call stated in one-tenth (1/10) hour segments. Travel within the state will be reimbursed in accordance with Judicial Department travel regulations. (ii) A Qualified Neutral may not be reimbursed for the services of a lawyer, other Qualified Neutral, other alternative dispute resolution neutral, paralegal, law clerk, secretary, legal assistant or other administrative assistants." | Dorothy Kaldi |
46 | Texas | Tex. Civ. Pract. & Remedies Code Title 7, Section 154.054 (Texas 1997 ADR Act) | Reasonable Compensation as Set by Court for Both Arbitration and Mediation - "Compensation of Impartial Third Parties. (a) The court may set a reasonable fee for the services of an impartial third party appointed under this subchapter. (b) Unless the parties agree to a method of payment, the court shall tax the fee for the services of an impartial third party as other costs of suit." | Notice the permissive "may," as opposed to "shall." Neutral compensation in Texas is left up to the individual judge, as is the case in Mississippi, but there are no guarantees. In this regard, compare Mississippi's neutral compensation statutory scheme, which makes use of the mandatory "shall," as opposed to the permissive "may." Also, interestingly, Texas has a statute that allows for reasonable compensation of ADR PROVIDER ENTITIES in addition to individual neutrals. See Tex. Civ. Pract. & Remedies Code Title 7, Section 152.006 ("An entity described by Section 152.002 (Establishment)(a) or (b)(1) that provides services for the resolution of disputes may collect a reasonable fee set by the commissioners court."). | |
47 | Utah | Article VIII, Section 12 of the Utah Constitution Enables Judicial Council to Enact Rules Pertaining to Neutral Compensation and Utah Code 78B-6-205(3)(q) | Left up to Judicial Council (similar to California) for Arbitration and Mediation - "(3) The rules of the Judicial Council shall include provisions: (q) to assess the fees to cover the cost of compensation for the services of the ADR provider and reimbursement for the provider's allowable, out-of-pocket expenses and disbursements." (Practically speaking, the status quo in Utah is that individual arbitrators and mediators set their own rates as set forth in listings comprising a state-wide Court Roster, but there are maximum fees that can be charged). | The Judicial Council has let arbitrators and mediators set their own rates, as per this FAQ from the Utah Courts website: "How much does it cost to mediate or arbitrate? Providers set their professional rate. The maximum hourly fee charged by individual mediators and arbitrators is indicated in the Court Roster. Please note mediators charge various fees ranging from $30.00-300.00 per hour. Fees are usually based on experience and background. Most mediation sessions typically run 3-4 hours but may be more or less depending on the issues involved. The fees are usually split among the parties unless ordered or arranged otherwise. For example: A mediator hired at $100.00 an hour conducts a four hour mediation. The charge will be $400.00 for the mediation session. If there are 2 parties involved, each party will owe $200.00 to the mediator." | Dorothy Kaldi |
48 | Vermont | Constitution Enables Court Rules: "The Vermont Constitution (chapter 2; sections 30, 31, 36, and 37) gives the Supreme Court the power to administer the courts and to make rules." See https://www.vermontjudiciary.org/attorneys/rules General Arbitration: 12 V.S.A. § 5665 Civil Mediation: Vermont Rule of Civil Procedure 16.3(c)(1) Vermont Superior Court Family Mediation Program: Vermont Rules for Family Proceedings Rule 18(d)(1)(B) Probate/Surrogate's Court: Vermont Rules of Probate Procedure Rule 16.1(b) | For Arbitration by Agreement of Parties: Arbitrator Establishes His/Her Financial Destiny - "§ 5665. Fees and expenses of arbitration. Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses incurred in the conduct of the arbitration, shall be paid as provided in the award." For Civil Mediation (V.R.C.P.): Private Agreement - The parties and their mediator work out a fee but the Court can fee-shift mediation fees onto a non-prevailing party, thereby giving the parties an incentive to mediate - "(1) Fees and Expenses; Payment for Services; Taxation as Costs. (A) The fees and expenses of a mediator selected by the parties will be agreed upon by the parties and the mediator. (B) Each party must pay an equal share of the fees and expenses of any selected or designated mediator unless otherwise agreed or ordered. Any party that believes it is financially unable to pay the fee may file a motion with the court requesting that mediation not be required in the case. (C) If mediation under this rule does not result in settlement or other final disposition of the action, payments made to a mediator may be taxed as costs to the prevailing party in the discretion of the court." For Family Mediation (V.R.F.P.): Court-subsidized Mediation Based Upon Party Income - "(B) If the mediation cannot be conducted by a mediator chosen as provided in subparagraph (A) of this paragraph, the mediation will be conducted by an individual mediator from the Family Division Mediation Program's [which has an established sliding scale of fees - see the "Comments" column] list of mediators, acceptable to the court and the parties. If the parties are not in agreement, the court may appoint a mediator from the Mediation Program list. If no mediator on the Mediation Program's list is available to conduct the mediation, the court may designate another mediator with credentials comparable to the minimum requirements for inclusion on the list, including domestic-violence training." For Probate/Surrogate's Court (V.R.P.P.): Court Enabled to Determine Compensation - "The court shall have the discretion to establish the allocation of payment for the fees and expenses of mediation." | Court-annexed arbitration does not appear to exist in Vermont save in three limited scenarios: where the parties' agreement does not provide a method for arbitrator appointment, where the method for arbitrator selection that the parties agreed to fails for whatever reason, and where a previously-appointed arbitrator is rendered incapacitated or otherwise unfit to serve. In these circumstances, the Court becomes empowered to appoint one or more arbitrators as necessary. See 12 V.S.A. § 5675(a) ("On application of a party, a court shall appoint one or more arbitrators if: (1) the arbitration agreement does not provide for a method of appointment; or (2) the agreed method fails or for any reason cannot be followed; or (3) an appointed arbitrator fails or is unable to act and his or her successor has not been duly appointed."). The Vermont Superior Court Family Mediation Program offers court-subsidized, sliding scale mediation rates to participants based upon income. All Vermont mediation frameworks mentioned herein (Civil, Family, and Probate) provide for sanctions. V.R.C.P. 16.3(f) is illustrative: "(f) Sanctions. — If a party, lawyer, or other person who is required to participate in a mediation under this rule does not appear at the mediation, or does not comply with any other requirement of this rule or any order made under it, unless that person shows good cause for not appearing or not complying, the court will impose one or more of the following sanctions: (1) The court will require the party or lawyer, or both, to pay the reasonable expenses, including attorney's fees and costs, of the opposing party, and any fees and expenses of the mediator, incurred by reason of the nonappearance, unless the court finds that such an award would be unjust in the circumstances. (2) In addition, the court may order the parties to submit to mediation, dismiss the action or any part of the action, render a decision or judgment by default, or impose any other sanction that is just and appropriate in the circumstances." | |
49 | Virginia | Virginia Code § 8.01-576.5 and Virginia Code § 8.01-581.07 and Virginia Code § 20-124.4 | For All Types of ADR: Agreement of Parties with No Court Involvement - "§ 8.01-576.5. Referral of disputes to dispute resolution proceedings. While protecting the right to trial by jury, a court, on its own motion or on motion of one of the parties, may refer any contested civil matter, or selected issues in a civil matter, to an orientation session in order to encourage the early resolution of disputes through the use of procedures that facilitate (i) open communication between the parties about the issues in the dispute, (ii) full exploration of the range of options to resolve the dispute, (iii) improvement in the relationship between the parties, and (iv) control by the parties over the outcome of the dispute. The neutral or intake specialist conducting the orientation session shall provide information regarding dispute resolution options available to the parties, screen for factors that would make the case inappropriate for a dispute resolution proceeding, and assist the parties in determining whether their case is suitable for a dispute resolution process such as mediation. The court shall set a date for the parties to return to court in accordance with its regular docket and procedure, irrespective of the referral to an orientation session. The parties shall notify the court, in writing, if the dispute is resolved prior to the return date. Upon such referral, the parties shall attend one orientation session unless excused pursuant to § 8.01-576.6 [which gives parties an automatic right to opt-out of the orientation session]. Further participation in a dispute resolution proceeding shall be by consent of all parties. Attorneys for any party may participate in a dispute resolution proceeding." For Arbitration by Agreement of the Parties: Arbitrator Determines His/Her Financial Destiny - "§ 8.01-581.07. Award; fees and expenses to be fixed. . . . Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees incurred in the conduct of the arbitration, and all other expenses, not including counsel fees, shall be paid as provided in the award." "§ 20-124.4. Mediation. . . . B. The fee of the mediator shall be $100 [see "Comments" column as to whether this has been recently raised to $120] per appointment mediated and shall be paid by the Commonwealth from the funds appropriated for payment of appointments made pursuant to subsection B of § 16.1-267. Any referral that includes both (i) custody or visitation and (ii) child or spousal support shall be considered two separate appointments." | IMPORTANT: Like North Dakota, Virginia is NOT a presumptive/mandatory ADR state such that parties are only "encouraged" to use ADR at the state level on a voluntary basis based on an initial court-ordered ADR orientation session, which is itself optional (i.e., the parties can opt out of attending even that session). As such, neutral compensation in civil disputes is entirely a function of agreement of the parties. Two exceptions involving set neutral compensation rates are found in the mediation of District Court civil cases and child custody disputes (but, again, this is only based on the parties' agreement to utilize these processes, and these fees are paid by the Court itself and not the parties, indicating the presence of a contactual arrangement between the courts and mediators to accept these rates): (1) District Court civil case mediations are set at a rate of $90 per mediation session (see General District Court Mediator Services Payment Invoice ("MSPI")); and (2) in child custody cases (see columns to the left), mediator compensation is set at a flat rate of $120 per mediation session (although the official website of the Virginia legislature still lists the compensation at $100 per mediation session). A slide presentation from Virginia's Division of Dispute Resolution Services discussing the 2019-2020 fiscal year references the two exceptions above. ("Virginia Code Section 20.124.4 authorizes payment for custody, visitation, or support (CVS) mediation. Effective FY17 payment per mediation was raised from $100 to $120, and support filings and custody or visitation filings may be billed separately. . . . In FY20, mediators and mediation providers were paid using ADR-MSPI forms for each court referred mediation. The volume of mediations around the state is tracked using these ADR-MSPI forms."). | |
50 | Washington | Rev. Code Wash. (RCW) 7.06.040(4) and RCW 7.04A.210(4) and RCW 7.75.030 and RCW 26.09.015(2)(a) | For Arbitration of Maintenance/Child Support Cases and Cases Where the Amount in Controversy Is $15K or Less in Counties with Populations of at Least 100,000 People (see RCW 7.06.10 & RCW 7.06.020): "(4) Arbitrators shall be compensated in the same amount and manner as judges pro tempore of the superior court." For Arbitration of Non-Maintenance/Child Support Cases and Cases Where the Amount in Controversy is Greater Than $15K or in Counties with Populations Less Than 100,000 People: Arbitrator Controls His/Her Financial Destiny - "(4) An arbitrator's expenses and fees, together with other expenses, must be paid as provided in the award." For Mediation of General Civil Disputes: "Pro Bono" or "Low Bono"/Sliding Scale Mediation Services Provided by a Network of Dispute Resolution Centers - "RCW 7.75.030. Services to be provided without charge or for fee based on ability to pay. A dispute resolution center established under this chapter shall provide dispute resolution services either without charge to the participants or for a fee which is based on the participant's ability to pay." For Mediation of Family Law/Parenting Cases: Courts Are Encouraged to Use the "Most Cost-Effective Mediation Services Readily Available" - "(2)(a) Each superior court may make available a mediator. The court shall use the most cost-effective mediation services that are readily available unless there is good cause to access alternative providers. The mediator may be a member of the professional staff of a family court or mental health services agency, or may be any other person or agency designated by the court. In order to provide mediation services, the court is not required to institute a family court." | For the compensation of judges pro tempore of the superior court that is applicable to certain types of arbitration in Washington, see RCW 2.08.180 ("A judge pro tempore who is a practicing attorney and who is not a retired justice of the supreme court or judge of a superior court of the state of Washington, or who is not an active judge of a court of the state of Washington, shall receive a compensation of one-two hundred fiftieth of the annual salary of a superior court judge for each day engaged in said trial, to be paid in the same manner as the salary of the superior judge."). As alluded to in the columns to the left, Washington does not appear to have a general mandatory or presumptive mediation program for civil cases. Instead, it has a network of State Dispute Resolution Centers ("DRCs") that provide mediation services in a variety of cases, including limited criminal actions. These services are either pro bono or "low bono." See https://www.courts.wa.gov/court_dir/?fa=court_dir.dispute ("DRCs provide free services or use a sliding fee scale based on income.") and https://onlinemasteroflegalstudies.com/career-guides/become-a-mediator/court-certified-mediation-requirements-by-state/#washington ("There are no statewide standards or guidelines for mediators who wish to receive court-referred cases. Instead, court-connected mediation goes through Dispute Resolution Centers (DRCs) in the state."). DRCs are allowed to accept both public and private contributions to fund operations. See RCW 7.75.070 ("RCW 7.75.070. Center may seek and expend funds. A dispute resolution center established under this chapter may seek and accept contributions from counties and municipalities, agencies of the state and federal governments, private sources, and any other available funds, and may expend the funds to carry out the purposes of this chapter."). Nonetheless, notwithstanding the presence of the DRCs, there are some local superior courts that have their own compensation structures. San Juan County, for example, has a "compensation is set by the parties' agreement" rule, namely SPR 94.08.03.(e) ("(e) Cost of Mediation. Mediators shall be paid by the parties in accordance with the agreement of the parties, or in the absence of agreement, as determined by the Court."). | Dorothy Kaldi |
51 | West Virginia | W. Va. Const. Art. 8-3 and W. Va. Code § 55-10-23 and W. Va. Trial Ct. R. 25.06 and W. Va. Rules of Prac. & Proc. for Family Cts. 41 | "8-3. Supreme court of appeals; jurisdiction and powers; officers and employees; terms. . . . The [Supreme] [C]ourt [of Appeals] shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the state relating to writs, warrants, process, practice and procedure, which shall have the force and effect of law." For Arbitration: Arbitrator Controls His/Her Financial Destiny - "Remedies; fees and expenses of arbitration proceeding. . . . (d) An arbitrator's award shall provide for the payment of expenses and fees, together with other expenses to be split among the parties, as provided by the parties' agreement or the rules of the arbitration organization." For Mediation of Civil Cases: Agreement of the Parties or Selection of Mediator by Court Paid by Parties with Expenses Paid by Court for Volunteer Mediators - "Rule 25.06. Compensation of Mediator. If the parties by their own agreement choose a mediator who requires compensation, the parties shall by written agreement determine how the mediator will be compensated. If the parties do not select a mediator by agreement, the court may designate a mediator who may require compensation. If it has established a budget approved by the Supreme Court of Appeals for this purpose, the court may reimburse a volunteer mediator for reasonable and necessary expenses, according to Supreme Court of Appeals travel regulations." For Mediation of Family Court Cases: Fees Set by Court According to Sliding Scale - "Rule 41. Mediation fees . . . Mediation services shall be ordered at hourly fees which are affordable to the parties and consistent with the approved sliding scale. The court may apportion the costs of mediation between the parties based on their abilities to pay. No mediator may charge a fee for court ordered mediation greater than the fee provided by the approved sliding scale." | West Virginia has an explicit statutory authorization for the sliding scale compensation system established by Family Court Rule 41, which appears in the columns to the left, and that is W. Va. Code § 48-9-202(d) ("(d) Mediation services authorized under subsection (a) of this section shall be ordered at an hourly cost that is reasonable in light of the financial circumstances of each parent, assessed on a uniform sliding scale. Where one parent's ability to pay for such services is significantly greater than the other, the court may order that parent to pay some or all of the expenses of the other. State revenues shall not be used to defray the costs for the services of a mediator: Provided, That the Supreme Court of Appeals may use a portion of its budget to pay administrative costs associated with establishing and operating mediation programs: Provided, however, That grants and gifts to the state that may be used to fund mediation are not to be considered as state revenues for purposes of this subsection."). | Dorothy Kaldi |
52 | Wisconsin | Wis. Stat. § 802.12(2)(d) | For Arbitration and Mediation (and More): "Reasonable Fees and Expenses of ADR Provider" as Agreed to by Parties or Set by Court - "(d) If the parties cannot agree regarding the payment of a provider of a settlement alternative [which includes arbitration, mediation, and other dispute resolution processes], the judge shall direct that the parties pay the reasonable fees and expenses of the provider of the settlement alternative. The judge may order the parties to pay into an escrow account an amount estimated to be sufficient to pay the reasonable fees and expenses of the provider of the settlement alternative." | In family law cases, Wisconsin has a set system of fees paid by the parties to county courts that are used for the provision of mediation services as well as child placement studies. See generally Wis. Stat. § 814.615 (providing for flat fees of $200 for more than one mediation session and $300 for child placement studies, although if the parties are unable to pay, courts are still obligated by statute to provide the services described in the statute). | Dorothy Kaldi |
53 | Wyoming | Wyoming Stats. § 1-36-112 and Wyoming R. Prac. & P. 40(b)(2)(D) | For Arbitration by Agreement of Parties: Arbitrator Establishes His/Her Financial Destiny - "Section 1-36-112 - Expenses and fees for arbitrators. The arbitrators' expenses, fees and other costs, not including counsel fees, incurred in the arbitration shall be paid as provided in the award, unless otherwise provided in the arbitration agreement." For Mediation or Settlement Conferences in Most Civil Cases: Agreement of the Parties Without Court Involvement in Setting Neutral Compensation - "(D) Fees and Costs. For those cases filed in court and assigned for settlement conference or mediation: (i) compensation for services shall be arranged by agreement between the parties and the person conducting the settlement conference or serving as the mediator, and (ii) that person's statement shall be paid within 30 days of receipt by the parties." | Court-annexed arbitration does not appear to exist in Wyoming save in three limited scenarios: where the parties' agreement does not provide a method for arbitrator appointment, where the method for arbitrator selection that the parties agreed to fails for whatever reason, and where a previously-appointed arbitrator is rendered incapacitated or otherwise unfit to serve. In these circumstances, the Court becomes empowered to appoint one or more arbitrators as necessary. See Wyoming Stats. § 1-36-105 ("If the arbitration agreement provides a method of appointment of arbitrators this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator fails or is unable to act and his successor has not been appointed, the court on application of a party shall appoint one (1) or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement."). However, arbitration and other forms of ADR are encouraged. See Wyoming R. Prac. & P. 40(b)(2)(E) ("Other forms of Alternative Dispute Resolution. Nothing in this rule is intended to preclude the parties from agreeing to submit their dispute to other forms of alternative dispute resolution, including arbitration and summary jury trial."). | |
54 | |||||
55 | NOTES | ||||
56 | |||||
57 | IMPORTANT GENERAL NOTE: Except where indicated, the rules and statutes in the table above relate to general civil cases (i.e., contract and tort-based claims). | ||||
58 | Child custody/divorce/family law , employment, foreclosures, landlord/tenant, workers' compensation and other types of specialized cases may be governed by | ||||
59 | separate neutral compensation rules and statutes established specifically for these cases. | ||||
60 | |||||
61 | 1) Useful website for comparing mediator qualifications: https://legalstudiesms.com/learning/court-certified-mediator-qualification-requirements/. | ||||
62 | Thank you, Nelson E. Timken, Esq., for the reference. | ||||
63 | |||||
64 | 2) Another two useful websites/resources for comparing state ADR court programs: (i) https://www.aboutrsi.org/acrossus (Chicago-based Resolution Systems Institute); and | ||||
65 | (ii) https://www.americanbar.org/content/dam/aba/events/dispute_resolution/Resources/state-mediation-program-directory.pdf | ||||
66 | (ABA 2021 Dispute Resolution Program State Directory (last updated Oct. 1, 2021)) | ||||
67 | |||||
68 | 3) Why "free time" compensation systems are intrinsically problematic - | ||||
69 | Quick Answers: the principles of effort justification (A1) and Gresham's Law (A2), fairness/equity (B1 and B2), the potential for abuse (C1 and C2), and minimization of diversity, especially where it comes to non-lawyer mediators and, on the other end of the ADR spectrum, AD2D Special Masters and other appellate-level mediators (D). Link back to New York. | ||||
70 | |||||
71 | (A1) PSYCHOLOGY: Kichaven, Jeff, International Risk Management Institute, Inc. (IRMI), "When It Comes to Mediators, You Get What You Pay For" (June 2004) - https://www.irmi.com/articles/expert-commentary/when-it-comes-to-mediators-you-get-what-you-pay-for | ||||
72 | |||||
73 | (A2) ECONOMICS: Parselle, Charles B., Mediate.com, "Gresham's Law: The Mediation Paradox" (March 2005) - https://www.mediate.com/articles/parselle3.cfm | ||||
74 | |||||
75 | (B1) FAIRNESS: de Waal, Frans, TED Blog Video, "Two Monkeys Were Paid Unequally: Excerpt from Frans de Waal's TED Talk" (Apr. 4, 2013). (one of Dan Weitz's "crowd favorites" at his neuroscience and ADR lectures) - https://www.youtube.com/watch?v=meiU6TxysCg&t=0s | ||||
76 | |||||
77 | (B2) FAIRNESS IN MULTI-PARTY CASES: How in any case where there are more than four parties with diverse needs and interests can any mediator be expected to fairly allocate all "free time" amongst the parties? Someone, as a matter of math, is going to be left holding the short end of the stick. | ||||
78 | |||||
79 | (C1) POTENTIAL FOR MEDIATOR ABUSE: Pynchon, Victoria, "Success as a Mediator for Dummies" at 26 (2012) - https://drive.google.com/file/d/1nkuwxLAHPB8ZRzyfBWcd_K2YasZoKFtn/view?usp=sharing | ||||
80 | |||||
81 | (C2) A 2005 ANECDOTE OF MEDIATOR ABUSE: Phyllis G. Pollack, Southern California Mediation Association News, "L.A. Courts Have Destroyed Intent of 'Pro Bono' Mediation" at 5 (Apr. - May 2005) - https://www.mediate.com/pdf/SCMANewsletter_june05%5B2%5D.pdf | ||||
82 | |||||
83 | (D) MINIMIZATION OF DIVERSITY: Kichaven, Jeff, The Resolver, "Message from the Section Chair" (Spring 2015) - https://drive.google.com/file/d/1Tbu0Jvr7v_tTOyEngsdeJN0QTmNeWG4s/view?usp=sharing | ||||
84 | |||||
85 | 4) The Current State of Presumptive ADR in New York - Kiernan, John S., International Institute for Conflict Prevention and Resolution (CPR) Alternatives to the High Cost of Litigation, "New York Presumptive ADR Experience Reflects Internal Buy-In Aided by Legal Profession Support" (May 2021) - https://drive.google.com/file/d/1gdSHULR_EoiKyMM7pJRgyxfBWdvJegey/view?usp=sharing - Thanks to Jeff Kichaven, Esq. for sharing this. | ||||
86 | |||||
87 | 5) Fair and reasonable neutral compensation is an integral component of the Center for Dispute Settlement's and the Institute of Judicial Administration's | ||||
88 | National Standards for Court-Connected Mediation Programs (2002). See generally Section 13, entitled Funding of Programs and Compensation of Mediators. | ||||
89 | Therein, a 1992 ABA Journal article from the late Harvard Law School Prof. Frank E.A. Sander is quoted as follows: "If ADR is to develop responsibly as a profession, | ||||
90 | its practitioners need to be reasonably compensated . . . . [I]f mediation is to be widely used in large-scale commercial and public policy disputes[,] then we cannot | ||||
91 | look solely to volunteers." F.E.A. Sander, Who Should Pay for Court-Connected ADR?, A.B.A J., Feb. 1992, at 105. Again, this was written over THIRTY YEARS AGO....... | ||||
92 | |||||
93 | 6) On February 3, 2022, the Administrative Board of the Courts circulated, for public comment, the Statewide ADR Advisory Committee's proposed new Part 60 Rules of the Chief Judge, along with the proposed new Part 160 Rules of the Chief Administrative Judge, to establish general statewide rules for presumptive ADR in New York. A copy of the proposal can be downloaded here: https://drive.google.com/file/d/1CEht8ZcYTAA-HTnNmaXKAoZem3fye2CJ/view?usp=sharing. | ||||
94 | |||||
95 | 7) On April 4, 2022, NYCLA's ADR Committee sent a letter to the New York Unified Courts System's Office of Court Administration ("OCA") encouraging adoption of the Statewide ADR Advisory Committee's proposed new Part 60 Rules of the Chief Judge, along with the proposed new Part 160 Rules of the Chief Administrative Judge, to establish general statewide rules for presumptive ADR in New York. Foornote 2 of that letter addresses neutral compensation. A copy of the letter can be downloaded here: https://drive.google.com/file/d/12hNoo--JHybVypKzR5xUhk9AXX4bZpYQ/view?usp=sharing. | ||||
96 | |||||
97 | |||||
98 | |||||
99 | |||||
100 | |||||