(a) Generally.- The rules in this Chapter apply only to civil actions in a circuit court. The rules in this Chapter do not apply to actions or orders to enforce a contractual agreement to submit a dispute to alternative dispute resolution. 

(b) Rules governing qualifications and selection.- The rules governing the qualifications and selection of a person designated to conduct court-ordered alternative dispute resolution proceedings apply only to a person designated by the court in the absence of an agreement by the parties. They do not apply to a master, examiner, or auditor appointed under Rules 2-541, 2-542, or 2-543. 

Rule 17-102. DEFINITIONS

In this Chapter, the following definitions apply except as expressly otherwise provided or as necessary implication requires: 

(a) Alternative Dispute Resolution
"Alternative dispute resolution" means the process of resolving matters in pending litigation through a settlement conference, neutral case evaluation, neutral fact-finding, arbitration, mediation, other non-judicial dispute resolution process, or combination of those processes.

Committee note: Nothing in these Rules is intended to restrict the use of consensus-building to assist in the resolution of disputes. Consensus-building means a process generally used to prevent or resolve disputes or to facilitate decision making, often within a multi-party dispute, group process, or public policy-making process. In consensus-building processes, one or more neutral facilitators may identify and convene all stakeholders or their representatives and use techniques to open communication, build trust, and enable all parties to develop options and determine mutually acceptable solutions.

(b) Arbitration
"Arbitration" means a process in which (1) the parties appear before one or more impartial arbitrators and present evidence and argument supporting their respective positions, and (2) the arbitrators render a decision in the form of an award that is not binding, unless the parties agree otherwise in writing.

Committee note: Under the Federal Arbitration Act, the Maryland Uniform Arbitration Act, at common law, and in common usage outside the context of court-referred cases, arbitration awards are binding unless the parties agree otherwise.

(c) Fee-for-service
"Fee-for-service" means that a party will be charged a fee by the person or persons conducting the alternative dispute resolution proceeding. 

(d) Mediation
"Mediation" means a process in which the parties work with one or more impartial mediators who, without providing legal advice, assists the parties in reaching their own voluntary agreement for the resolution of the dispute or issues in the dispute. A mediator may identify issues and options, assist the parties or their attorneys in exploring the needs underlying their respective positions and, upon request, record points of agreement reached by the parties. While acting as a mediator, the mediator does not engage in arbitration, neutral case evaluation, neutral fact-finding, or other alternative dispute resolution processes and does not recommend the terms of an agreement.

(e) Mediation Communication
"Mediation communication" means speech, writing, or conduct made as part of a mediation, including communications made for the purpose of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.

(f) Neutral Case Evaluation
"Neutral case evaluation" means a process in which (1) the parties, their attorneys, or both appear before an impartial person and present in summary fashion the evidence and arguments supporting their respective positions, and (2) the impartial person renders an evaluation of their positions and an opinion as to the likely outcome of the dispute or issues in the dispute if the action is tried.

(g) Neutral Fact-finding
"Neutral fact-finding" means a process in which (1) the parties, their attorneys, or both appear before an impartial person and present evidence and arguments supporting their respective positions as to particular disputed factual issues, and (2) the impartial person makes findings of fact as to those issues. Unless the parties otherwise agree in writing, those findings are not binding. 

(h) Settlement Conference
"Settlement conference" means a conference at which the parties, their attorneys, or both appear before an impartial person to discuss the issues and positions of the parties in the action in an attempt to resolve the dispute or issues in the dispute by agreement or by means other than trial. A settlement conference may include neutral case evaluation and neutral fact-finding, and the impartial person may recommend the terms of an agreement. 

Source: This Rule is new.

Rule 17-103. GENERAL PROCEDURES AND REQUIREMENTS

(a) In General
A court may not require a party or the party's attorney to participate in an alternative dispute resolution proceeding except in accordance with this Rule. 

(b) Minimum Qualifications Required for Court Designees
A court may not require a party or the party's attorney to participate in an alternative dispute resolution proceeding conducted by a person designated by the court unless (1) that person possesses the minimum qualifications prescribed in the applicable rules in this Chapter, or (2) the parties agree to participate in the process conducted by that person. 

(c) Procedure

     (1) Inapplicable to Child Access Disputes
This section does not apply to proceedings under Rule 9-205. 

     (2) Objection
If the court enters an order or determines to enter an order referring a matter to an alternative dispute resolution process, the court shall give the parties a reasonable opportunity (A) to object to the referral, (B) to offer an alternative proposal, and (C) to agree on a person to conduct the proceeding. The court may provide that opportunity before the order is entered or upon request of a party filed within 30 days after the order is entered. 

     (3) Ruling on Objection
The court shall give fair consideration to an objection to a referral and to any alternative proposed by a party. The court may not require an objecting party or the attorney of an objecting party to participate in an alternative dispute resolution proceeding other than a non-fee-for-service settlement conference. 

     (4) Designation of Person to Conduct Procedure
In an order referring an action to an alternative dispute resolution proceeding, the court may tentatively designate any person qualified under these rules to conduct the proceeding. The order shall set a reasonable time within which the parties may inform the court that (A) they have agreed on another person to conduct the proceeding, and (B) that person is willing and able to conduct the proceeding. If, within the time allowed by the court, the parties inform the court of their agreement on another person willing and able to conduct the proceeding, the court shall designate that person. Otherwise, the referral shall be to the person designated in the order. In making a designation when there is no agreement by the parties, the court is not required to choose at random or in any particular order from among the qualified persons. Although the court should endeavor to use the services of as many qualified persons as possible, the court may consider whether, in light of the issues and circumstances presented by the action or the parties, special training, background, experience, expertise, or temperament may be helpful and may designate a person possessing those special qualifications. 
Source: This Rule is new.

Rule 17-104. QUALIFICATIONS AND SELECTION OF MEDIATORS

(a) Qualifications in General
To be designated by the court as a mediator, other than by agreement of the parties, a person must:

     (1) unless waived by the court, be at least 21 years old and have at least a bachelor's degree from an accredited college or university; 

Committee note: This subsection permits a waiver because the quality of a mediator's skill is not necessarily measured by age or formal education.

     (2) have completed at least 40 hours of mediation training in a program meeting the requirements of Rule 17-106;

     (3) complete in every two year period eight hours of continuing mediation-related education in a program meeting the requirements of Rule 17-106;

     (4) abide by any standards adopted by the Court of Appeals; 

     (5) submit to periodic monitoring of court-ordered mediations by a qualified mediator designated by the county administrative judge; and 

     (6) comply with procedures and requirements prescribed in the court's case management plan filed under Rule 16-202 b. relating to diligence, quality assurance, and a willingness to accept a reasonable number of referrals on a reduced-fee or pro bono basis upon request by the court. 

(b) Additional Qualifications -- Child Access Disputes
To be designated by the court as a mediator with respect to issues concerning child access, the person must: 

     (1) have the qualifications prescribed in section (a) of this Rule; 

     (2) have completed at least 20 hours of training in a family mediation training program meeting the requirements of Rule 17-106; and 

     (3) have observed or co-mediated at least eight hours of child access mediation sessions conducted by persons approved by the county administrative judge, in addition to any observations during the training program. 

(c) Additional Qualifications -- Marital Property Issues
To be designated by the court as a mediator in divorce cases with marital property issues, the person must:

     (1) have the qualifications prescribed in section (a) of this Rule;

     (2) have completed at least 20 hours of skill-based training in mediation of marital property issues; and

     (3) have observed or co-mediated at least eight hours of divorce mediation sessions involving marital property issues conducted by persons approved by the county administrative judge, in addition to any observations during the training program.
Source: This Rule is new. 

Rule 17-105. QUALIFICATIONS AND SELECTIONS OF PERSONS OTHER THAN MEDIATORS

(a) Generally
Except as provided in section (b) of this Rule, to be designated by the Court to conduct an alternative dispute resolution proceeding other than mediation, a person, unless the parties agree otherwise, must: 

     (1) abide by any standards adopted by the Court of Appeals; 

     (2) submit to periodic monitoring of court-ordered alternative dispute resolution proceedings by a qualified person designated by the county administrative judge; 

     (3) comply with procedures and requirements prescribed in the court's case management plan filed under Rule 16-202 b. relating to diligence, quality assurance, and a willingness to accept a reasonable number of referrals on a reduced-fee or pro bono basis upon request by the court; 

     (4) either (A) be a member in good standing of the Maryland bar and have at least five years experience in the active practice of law as (i) a judge, (ii) a practitioner, (iii) a full-time teacher of law at a law school accredited by the American Bar Association, or (iv) a Federal or Maryland administrative law judge, or (B) have equivalent or specialized knowledge and experience in dealing with the issues in dispute; and 

     (5) unless waived by the court, have completed a training program that consists of at least eight hours and has been approved by the county administrative judge.

(b) Judges and Masters
A judge or master of the court may conduct a non-fee-for-service settlement conference. 

Cross reference: See Rules 16-813, Canon 4H and 16-814, Canon 4H. 

Source: This Rule is new. 

Rule 17-106. MEDIATION TRAINING PROGRAMS.

(a) In general.- To qualify under Rule 17-104 (a)(3), a mediation training program must include the following: 

     (1) conflict resolution and mediation theory, including causes of conflict, interest-based versus positional bargaining, and models of conflict resolution; 

     (2) mediation skills and techniques, including information gathering skills, communication skills, problem solving skills, interaction skills, conflict management skills, negotiation techniques, caucusing, cultural and gender issues, and power balancing; 

     (3) mediator conduct, including conflicts of interest, confidentiality, neutrality, ethics, and standards of practice; 

     (4) rules, statutes, and practice governing mediation in the circuit courts; and 

     (5) simulations and role-playing, monitored and critiqued by experienced mediator trainers. 

(b) Child access mediation training.- To qualify under Rule 17-104 (b)(2), a mediation training program must include the following: 

     (1) Maryland law relating to separation, divorce, annulment, child custody and visitation, child and spousal support; 

     (2) emotional aspects of separation and divorce on adults and children; 

     (3) screening for and addressing domestic violence; 

     (4) introduction to family systems and child development theory; and 

     (5) inter-relationship of custody and child support. 

Rule 17-107. Procedure for approval.

(a) Application.- A person seeking designation to conduct alternative dispute resolution proceedings pursuant to Rule 2-504 shall file an application with the clerk of the circuit court from which the person is willing to accept referrals. The application shall be substantially in the form approved by the State Court Administrator and shall be accompanied by documentation demonstrating that the applicant has the qualifications required by Rule 17-104, if the person is applying for designation as a mediator, or Rule 17-105 (a), if the person is applying for designation to conduct alternative dispute resolution proceedings other than mediation. The State Court Administrator may require the application and documentation to be in a form that can be stored in a computer. 

(b) Approved lists.- After any investigation that the county administrative judge chooses to make, the county administrative judge shall notify each applicant of the approval or disapproval of the application and the reasons for a disapproval. The clerk shall prepare a list of mediators found by the county administrative judge to meet the qualifications required by Rule 17-104 and a separate list of persons found by the county administrative judge to meet the qualifications required by Rule 17-105 (a) for conducting other alternative dispute resolution proceedings. Those lists, together with the applications of the persons on the lists, shall be kept current by the clerk and be available in the clerk's office to the public. 

(c) Removal from list.- After notice and a reasonable opportunity to respond, the county administrative judge shall remove a person from a list if the person ceases to meet the applicable qualifications of Rule 17-104 or Rule 17-105 (a) and may remove a person for other good cause. 

Rule 17-108. FEE SCHEDULES.

Subject to the approval of the Chief Judge of the Court of Appeals, the county administrative judge of each circuit court may develop and adopt maximum fee schedules for persons conducting each type of alternative dispute resolution proceeding other than on a volunteer basis. In developing the fee schedules, the county administrative judge shall take into account the availability of qualified persons willing to provide those services and the ability of litigants to pay for those services. A person designated by the court, other than on the agreement of the parties, to conduct an alternative dispute resolution proceeding under Rule 2-504 may not charge or accept a fee for that proceeding in excess of that allowed by the schedule. Violation of this Rule shall be cause for removal from all lists. 

Rule 17-109. MEDIATION CONFIDENTIALITY

(a) Mediator
Except as provided in sections (c) and (d) of this Rule, a mediator and any person present at the request of the mediator shall maintain the confidentiality of all mediation communications and may not disclose or be compelled to disclose mediation communications in any judicial, administrative, or other proceeding.

(b) Parties
Subject to the provisions of sections (c) and (d) of this Rule, (1) the parties may enter into a written agreement to maintain the confidentiality of all mediation communications and to require any person present at the request of a party to maintain the confidentiality of mediation communications and (2) the parties and any person present at the request of a party may not disclose or be compelled to disclose mediation communications in any judicial, administrative, or other proceeding.

(c) Signed Document
A document signed by the parties that reduces to writing an agreement reached by the parties as a result of mediation is not confidential, unless the parties agree in writing otherwise.
Cross reference: See Rule 9-205 (d) concerning the submission of a memorandum of the points of agreement to the court in a child access case.

(d) Permitted Disclosures
In addition to any disclosures required by law, a mediator and a party may disclose or report mediation communications to a potential victim or to the appropriate authorities to the extent that they believe it necessary to help:
     (1) prevent serious bodily harm or death, or
     (2) assert or defend against allegations of mediator misconduct or negligence.
Cross reference: For the legal requirement to report suspected acts of child abuse, see Code, Family Law Article, §5-705.

(e) Discovery; Admissibility of Information
Mediation communications that are confidential under this Rule are privileged and not subject to discovery, but information otherwise admissible or subject to discovery does not become inadmissible or protected from disclosure solely by reason of its use in mediation.
Source: This Rule is new.