(a) Pretrial conferences; objectives. – In any action, the Court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as:
(1) Expediting the disposition of the action;(2) Establishing early and continuing control so that the case will not be protracted because of lack of management;(3) Discouraging wasteful pretrial activity;(4) Improving the quality of the trial through more thorough preparation; and(5) Facilitating the settlement of the case.(b) Scheduling and planning. Except in categories of actions identified in this rule or any specific action exempted by the Court as inappropriate, the Court shall, at a time deemed appropriate by the Court, enter a scheduling order that either establishes or limits the time:
(1) To join other parties and to amend the pleadings;(2) To file and hear motions;(3) To complete discovery.(4) To engage in compulsory alternative dispute resolution (“ADR”) , the format of which is to be agreed upon by the parties. Such ADR may include, but shall not be limited to, non-binding or, if agreed to by the parties, binding arbitration, mediation or neutral case assessment. If the parties cannot agree on the format of ADR, the default format shall be mediation unless otherwise ordered by the Court.
(a)In the event the parties cannot agree on an ADR Practitioner, they shall file a joint motion with the Court within thirty (30) days of the issuance of the scheduling order requesting that the Court appoint an ADR Practitioner for the parties. The Court may impose sanctions upon a party or both parties if it determines that the parties have not attempted to agree upon an ADR Practitioner in good faith.(b)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.(c)The ADR Practitioner may not be called as a witness in any aspect of the litigation, or in any proceeding relating to the litigation in which the ADR Practitioner served, unless ordered by the Court. In addition, all ADR Practitioners, when serving as an arbitrator, mediator or neutral assessor, shall be immune from civil liability for, or resulting from, any act or omission done or made while engaged in ADR, unless an act or omission was made or done in bad faith, with malicious intent, or in a manner exhibiting a wilful, wanton disregard of the rights, safety, or property of another. Each ADR Practitioner shall remain bound by any confidentiality agreement signed by the parties and the ADR Practitioner as part of the ADR.(d) All memoranda, work products, and other materials contained in the case files of an ADR Practitioner or the Court related to the mediation are confidential. Any communication made in or in connection with the mediation which relates to the controversy being mediated, whether made to the ADR Practitioner or a party, or to any person made at a mediation conference, is confidential. The mediation agreement shall be confidential unless the parties otherwise agree in writing. Confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding except:
(i) Where all parties to the mediation agree in writing to waive the confidentiality;(ii) In any action between the ADR Practitioner and(iii) Statements, memoranda, materials, or other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation conference. (e) If a mediation is not successful, no party may use statements made during the mediation or memoranda, materials or other tangible evidence prepared for the mediation at any point in the litigation in any way, including, without limitation, to impeach the testimony of any witness.(f) The following definitions apply to this rule:
(i) “Arbitration” is a process by which a neutral arbitrator hears both sides of a controversy and renders a fair decision based on the facts and the law. If the parties stipulate in writing the decision shall be binding, in which instance the case is removed from the Court’s docket.(ii)“Mediation” is a process by which a mediator facilitates the parties in reaching a mutually acceptable resolution of a controversy. It includes all contacts between the mediator and any party or parties until a resolution is agreed to, the parties discharge the mediator, or the mediator determines that the parties cannot agree.(iii)“Neutral case assessment” is a process by which an experienced neutral assessor gives a non-binding, reasoned oral or written evaluation of a controversy, on its merits, to the parties. The neutral assessor may use mediation and/or arbitration techniques to aid the parties in reaching a settlement.(iv)“ADR Practitioner” shall include the arbitrator, mediator, neutral case assessor or any other Practitioner engaged by the parties to facilitate ADR.(g) The compulsory ADR set forth in this rule shall not apply to the following civil actions, unless otherwise ordered by the Court: matters subject to Superior Court Rules 23 and 81(a), replevin, foreign or domestic attachment, statutory penalty and mortgage foreclosure actions, and in forma pauperis actions.(5) Scheduling order deadlines. —
(i) A party, upon reasonable notice to other parties and all persons affected thereby, who proposes a change to a deadline contained in a scheduling order entered by the Court in accordance with this Rule shall make an application to the Court for such a change pursuant to Rule 7(b) or by written stipulation and order. Subsection (i) shall not apply to deadlines that are not contained in the scheduling order.(ii) The Court may be promptly notified if a party does not comply with a deadline contained in a scheduling order. The Court may be notified by any party through a motion to compel, a proposal to amend the scheduling order or a request for a conference. A party may avail itself of any Rule of this Court (including but not limited to Rule 37) for a party’s failure to comply with a deadline contained in a scheduling order. (iii) Unless manifest injustice would result, a party’s failure to promptly notify the Court of another party’s failure to comply with a deadline contained in a scheduling order may result in a waiver of that party’s right to contest any late filings by the offending party from that time forward.(iv) This Rule shall not prevent the Court, upon motion or its own initiative, from making any orders to enforce compliance with a scheduling order. (b) Any other deadlines or protocols appropriate in the circumstances of the case including, but not limited to, appropriate sanctions for failure to meet the deadlines and requirements established by the scheduling order to include, in the Court’s discretion, dismissal of the action or default judgment.
The scheduling order may also include:
(6) The date, or dates for conferences before trial, a final pretrial conference, and trial; and(7) Any other matters appropriate in the circumstances of the case.(c) Subjects to be discussed at pretrial conferences. – The participants at any conference under this Rule may consider and take action with respect to:
(1) The formulation and simplification of the issues, including the elimination of frivolous claims or defenses;(2) The necessity or desirability of amendments to the pleadings;(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the Court on the admissibility of evidence;(4) The avoidance of unnecessary proof and of cumulative evidence;(5) The identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;(6) The advisability of referring matters to a master;(7) The possibility of settlement or the use of extra-judicial procedures to resolve the dispute;(8) The form and substance of the pretrial order;(9) The disposition of pending motions;(10) The need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; and(11) Such other matters as may aid in the disposition of the action. At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. (d) Final pretrial conference. – A final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at this conference shall formulate a plan for trial, including the presentation of a pretrial stipulation which substantially complies with the pretrial stipulation form approved by this Court. See Form 46. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.(e) Pretrial orders. After any conference held pursuant to this Rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.(f) Sanctions. If a party or party’s attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party’s attorney fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b) (2) (B) , (C) , (D) . In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party, or both, to pay the reasonable expenses incurred because of any noncompliance with this Rule, including attorneys’ fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
