CHAPTER 1-3
ALTERNATIVE DISPUTE RESOLUTION
(amendments to chapter adopted by NPTEC 5/28-29/02)
§ 1-3-1 Scope and Purpose
The purpose of this chapter is to provide an alternative means of resolving disputes for the parties to certain civil law suits. Specifically, this chapter will allow individuals to save time and costs by reaching early resolution of cases in an informal setting without sacrificing the quality of justice. Mediation is a process by which a neutral mediator appointed by the court or agreed to by the parties in reaching a mutually acceptable agreement. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, and finding points of agreement. The decision made is that of the parties, not of the mediator. No appeal shall be available from an agreement reached by the parties under this chapter.
§ 1-3-2 Matters Subject to Mediation
(a) All small claims cases defined in NPTC chapter 1-2 are subject to mandatory court-ordered mediation prior to trial.
(b) All civil domestic relations matters involving a controversy over custody or visitation of minor children are subject to mediation by agreement of the parties prior to trial.
(c) The Court has the discretion to order mediation in other civil cases prior to trial where the Court believes such mediation is in the best interests of all the parties and is not otherwise inappropriate under the facts of the particular case.
(d) The parties to any civil action may petition the Tribal Court for mediation at any time prior to trial.
(e) Matters involving housing or gaming disputes, employment termination, domestic relations matters where domestic violence is alleged, and any dispute where there is a risk of severe prejudice to a party from delay are exempt from this Chapter.
§ 1-3-3 Application
(a) The parties to a civil action who have petitioned the Court for mediation shall submit their request to the Tribal Court in writing, signed by all parties to the dispute including:
(1) the names and addresses of the parties;
(2) the names and addresses of any other persons involved in the dispute who may contribute to resolution of the matter; and
(3) a short statement of the problem involved and the reason mediation is requested.
(b) The judge:
(1) shall grant or deny a request for mediation;
(2) may refer an eligible case to mediation regardless of whether a request has been submitted; or
(3) once mediation is granted or otherwise imposed, shall stay the proceedings in the litigation unless the parties agree to lift the stay.
(c) Any action may be exempt or withdrawn from mediation by the presiding judge at any time upon a determination that, for any reason, the case is not suitable for mediation.
§ 1-3-4 Certification and Compensation of Mediators
(a) The chief judge shall compile a list to be maintained by the clerk of court of persons certified as mediators. An individual may be certified as a mediator if he:
(1) is determined by the chief judge to be qualified and competent to perform the duties of a mediator based on experience and official training;
(2) has read and understands this Code and all applicable ethical standards;
(3) takes the following oath either orally or in writing:
"I do solemnly swear (or affirm) that I will support the Constitution and laws of the United States and support and defend the Nez Perce Treaties, Constitution and laws of the Nez Perce Tribe, and that I will maintain proper respect for the Courts and Judicial Officers of the Nez Perce Tribe."
(b) The chief judge may require additional training of certified mediators if deemed necessary and appropriate.
(c) Mediators shall be paid a fee of $10.00 per day and shall be reimbursed for expenses reasonably incurred. At the time when the mediator files his report, or when a case is withdrawn from mediation, the mediator shall submit a voucher on the form prescribed by the clerk for payment of compensation and reasonable expenses necessarily incurred in the performance of his duties. In determining whether actual expenses incurred are reasonable, the mediator shall be guided by the limitations placed upon travel and subsistence expenses of tribal employees in accordance with tribal policy and procedures. All mediator costs shall be borne by the parties. Where the court orders mediation, the party’s filing fee shall be applied to the costs of the mediator.
§ 1-3-5 Selection of Mediator for Individual Cases
A certified mediator may be chosen to mediate a dispute by written agreement of the parties. If the parties do not select a mediator one shall be appointed by the chief judge.
§ 1-3-6 Disqualification
(a) A mediator shall be disqualified to preside at mediation if he:
(1) violates the Canons of Judicial Ethics which apply to Nez Perce tribal judges under this code;
(2) has a personal or financial interest or is a close relation to a party.
(b) Any person whose name appears on the roster maintained in the clerk's office may ask at any time to have his name removed or, if selected to serve, decline to serve, but remain on the roster.
(c) Complaints regarding mediators shall be made to the chief judge in writing and shall be treated as any complaint against a judge of the Nez Perce Tribe.
§ 1-3-7 Hearings
(a) The mediator shall contact the parties to schedule an initial meeting within twenty (20) business days after the case is referred to mediation.
(b) At least ten (10) business days prior to the meeting, each party shall submit a detailed summary of his position together with copies of all documents including, bills, records, photographs and any other materials supporting the party's claim to the mediator and the opposing party by means of certified mail.
(c) Each individual party shall attend the meeting in person. Corporations, governmental bodies, or other entities, shall be represented at the hearing by an officer or other person with complete settlement authority. Attorneys shall be barred from participating in any mediation proceedings except to assist their clients in filing complaints against mediators or petitions for protective orders.
(d) The parties may upon obtaining the advance consent of the mediator, bring with them such other persons, not including their attorney, as will tend to further the resolution of the issues of the case.
(e) The conduct of the meeting shall be within the discretion of the mediator. The mediator shall define and describe the process of the mediation, confidentiality, the duties and requirements of the mediator and the parties, the fact that any agreement reached will be reached by mutual consent of the parties, and the ability of the parties to seek advice of counsel. The mediator shall objectively listen to the positions of the parties and assist the parties in reaching a settlement of all or some of the issues of the case.
(f) Mediator meetings may be held at the Tribal Court or other room in a tribally owned building made available to the mediator by the clerk's office. When no such room is available, the meeting shall be held at any other suitable location selected by the mediator. In making the selection, the mediator shall consider the convenience of the parties.
(h) The mediator shall be authorized to establish reasonable rules and issue orders necessary to make the meeting productive and may with the agreement of the parties, hold additional meetings to attempt resolution of the issues.
§ 1-3-8 Petition to Terminate Mediation
Any party in a mediation proceeding may petition the Court in writing for an order to terminate the mediation process. Upon receipt of the petition, the Court shall grant the request and issue an order lifting the stay of proceedings in the litigation.
§ 1-3-9 Judgments
(a) If an agreement is reached during the mediation, the mediator shall file a report with the clerk's office not more than five (5) business days following the date of the agreement. The clerk shall serve copies of the report filed on the parties.
(b) The mediators report shall be in writing, signed by the mediator and shall include:
(1) the names and addresses of each party;
(2) a statement that the parties have agreed to a particular resolution to a disputed issue, if such is the case;
(3) a statement that all parties agreed that the mediator would decide on a disputed issue, if such is the case;
(4) a general description of the dispute;
(5) the final resolution of any disputed issues.
(c) A copy of any agreement between the parties, shall be signed by the parties and appended to the mediator's report.
(d) Promptly upon the filing of the mediator's report and the parties' agreement with the clerk, the Court shall review the documents and enter judgment thereon if the Court finds the agreement to be consistent with the laws of the Nez Perce Tribe and is satisfied that the parties entered into the agreement knowingly and freely. The judgment shall have the same force and effect as any judgment of the Tribal Court in a civil action.