(a) Definition of Mediation. Mediation under this Rule is the process by which a neutral mediator assists 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. An agreement reached by the parties is to be based on the decisions of the parties, and not the decisions of the mediator.(b) Matters Subject to Mediation. All civil cases governed under these rules are eligible for referral to mediation.(c) Authority of the Courts. The referral of a civil action to mediation does not divest the court of the authority to exercise management and control of the case during the pending mediation.(d) Referral to Mediation. In its discretion a court may order a case to mediation, as follows:
(1) upon motion by a party;(2) at any Rule 16 conference;(3) upon consideration of request for trial setting, pursuant to Rule 16(b), if all parties indicate that mediation would be beneficial; or(4) at any other time upon 7 days’ notice to the parties if the court determines mediation is appropriate.(e) Selection of the Mediator. If, within 28 days from entry of the mediation order or such other time as the court orders, the parties do not select a mediator and report their selection to the court, the court must appoint a mediator from the judicial district’s list of mediators.(f) Scheduling of First Mediation Session. Unless the court otherwise orders, the first mediation session must take place within 42 days of the reporting of the selection or the appointment of the mediator.(g) Reports. Within 7 following the last mediation session, the mediator or the parties must advise the court, with a copy to the parties, whether the case has, in whole or in part, settled.(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 share of the mediator’s fees and expenses. If a mediator is not paid, the court, upon motion of the mediator may order payment.(i) Impartiality. The mediator has a duty to be impartial, and has a continuing duty to advise all parties of any circumstances bearing on possible bias, prejudice or partiality.(j) Attendance at Mediation. The attorneys who will be primarily responsible for handling the actual trial of the matter, and all parties, or insurers, if applicable, with authority to settle, must attend the sessions, unless otherwise excused by the court, the agreement of the parties, or the mediator upon a showing of good cause.(k) Confidentiality. The mediator must abide by the confidentiality rules agreed to by the parties. Confidentiality protections of Rules 408 and 507, Idaho Rules of Evidence, extend to mediations under this Rule.
(I) Sanctions. The mediator is subject to sanctions, including referral for removal from the roster of mediators, if the mediator fails to assume the responsibilities provided herein.
I.R.C.P. 37.1
Effective July 1, 2016; further amended September 21, 2016, effective nunc pro tunc to September 9, 2016.
