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Rule 703 Mediation

Baldwin's Kentucky Revised Statutes Annotated3rd Judicial Circuit - Christian Family Court

Baldwin's Kentucky Revised Statutes Annotated
3rd Judicial Circuit - Christian Family Court
Rule 7. Domestic Relations Practice
KY RCCF Rule 703
Rule 703 Mediation
Mediation is an informal process in which a neutral Mediator acts to facilitate the resolution of a dispute between two or more parties. The process is designed to help disputing parties reach an agreement on all or part of the issues in dispute. Mediation is based on principles of communication, negotiation, facilitation, and problem-solving that emphasize the needs and interests of the participants; fairness; procedural flexibility; privacy and confidentiality; full disclosure; and self determination. Decision-making authority remains at all times with the parties, not the Mediator.
A. Referral of Matters to Mediation
The parties and their respective counsel may at any time refer any issue to mediation by submission of an agreed order which appoints a Mediator or provides for the Court to appoint a Court Approved Mediator. Pursuant to FCRPP 2(6)(a), the Court may order any party to mediation. The Christian Family Court has at least one (1) trained Mediator on staff. The parties can choose to utilize this Mediator at no additional cost to the parties.
B. General Requirements
All orders or agreements to mediate shall include the Mediator's name and address. Copies of all orders of mediation filed with the Clerk shall contain a Notice of Entry to the Mediator and Family Court Staff. Upon notice of entry of a mediation order, the Family Court Staff shall schedule an appointment between the parties, counsel and the Mediator with notice to the parties.
C. Mediation Procedures
1. Attendance of Counsel and Parties. The parties shall attend the mediation conference and participate in good faith. The parties shall appear promptly at the time and location for the scheduled mediation conference. The attorneys for each party may attend and participate, subject to the defined roles of the Mediator, and shall at all times be permitted to privately communicate with their respective clients. In appropriate cases, a party may be permitted to attend the mediation telephonically.
2. Failure to Appear for Mediation. If either party should fail to appear without reasonable notice and/or good cause for any mediation session, at the conclusion of the case, the Court may, upon a motion, award attorneys fees and/or costs or impose any other appropriate sanction, including contempt.
3. The first session of mediation shall be a minimum two (2) hour period. Thereafter, mediation shall proceed only with the agreement of both parties, the parties' counsel and the Mediator. At any point, the Mediator can use discretion in terminating a mediation prior to the two (2) hour period.
D. Information to be Provided to Mediator
1. A short statement including definition of the issues to be addressed by the Mediator and a brief narrative statement of any special problems affecting the case (e.g., closely held corporation, medical problems of any family member, etc.);
2. Copies of all documents supporting valuation of assets;
3. Copies of all documents verifying monthly payments and outstanding balances on all debts;
4. All information and copies of all documents requested by the Mediator prior to the mediation conference;
5. Copies of all domestic violence orders in effect involving the parties and/or children. Under Kentucky Domestic Violence statutes, the Court cannot compel any party that is protected by an EPO/DVO to attend a mediation unless it is by agreement of that person.
E. Duties of the Mediator
1. The Mediator has a duty to define and describe the process of mediation and its costs during an orientation session with the parties at the commencement of the mediation conference. The orientation should include the following:
a. A description of the roles and responsibilities of the Mediator, counsel, and the parties;
b. The fees per session, if any;
c. A statement that any agreement reached will be reached by mutual consent of the parties;
d. An explanation that mediation differs from other forms of conflict resolution including therapy, counseling; arbitration and the practice of law;
e. A description of the circumstances under which the Mediator may meet privately with either of the parties and their counsel, if represented, or with any other person, i.e., during scheduled mediation, the Mediator may meet and consult privately with any party or parties and their counsel;
f. An explanation that statements made during mediation hearings by any party shall be privileged, exempt from subpoena and discovery, and shall not be admissible in any proceeding for any purpose. Such statements shall also be deemed confidential except for the purpose of the Mediator reporting to the court as outlined in these Rules and will be released to no other person or agency without the express written consent of both of the parties to the dispute. The only exception is that the Mediator shall be responsible for reporting abuse according to KRS 209.030 and KRS 620.030;
g. The acquisition of any information necessary to define the disputed issues;
h. An explanation by the Mediator that during the process of mediation the parties may, by agreement, employ a third party to help resolve factual disputes, e.g. valuation of assets, determination of tax consequences, psychological evaluations, and child custody evaluations;
i. A statement by the Mediator that he/she shall conduct the mediation in accordance with these rules; and
j. Scheduling by the Mediator of any further mediation sessions for the parties.
2. Disqualification of a Mediator. The Mediator shall be impartial and shall advise all parties of any circumstances bearing on probable bias, prejudice, or impartiality including any past or present relationships with either party or persons related to them. A Mediator has a duty to disclose any facts bearing on his or her qualifications, including any fact which would be grounds for disqualification of a Judge. Any person may move to disqualify a Mediator. Nothing in this provision shall limit the discretion of a Mediator to refuse any assignment or elect voluntary disqualification, upon written notification to the parties and the Court.
3. The Mediator shall not communicate ex parte with the Court, either directly or indirectly, regarding any case, the parties thereto, or their respective counsel.
F. Confidentiality
1. Mediation proceedings shall be held in private and all communications, verbal and written, made in the proceedings shall be confidential. The same protection shall be given to communications between the parties in the presence of the Mediator, and to all communications, verbal or written, with the Family Court Staff or other court staff. The only exception to this Rule is that the Mediator and the court staff shall be required to report abuse in accordance with KRS 209.030 and KRS 620.030.
2. Evidence of conduct or statements by any party or Mediator at any mediation session are not admissible for any purpose except that either party may introduce any written agreement developed in mediation which is signed by all parties and their counsel, if any.
3. All conduct and communications made during a mediation conference shall be treated as settlement negotiations and shall be governed by K.R.E. 408.
4. Mediators shall not be subpoenaed regarding the disclosure of any matter discussed during the mediation which is considered confidential. This privilege and immunity resides with the Mediator and may not be waived by the parties.
G. Interim or Emergency Relief. Litigation, other than requests for emergency relief, shall be suspended during the course of mediation. Mediation shall continue while such interim relief is sought, absent a contrary order of the Court or a decision of the Mediator or either party to adjourn pending disposition.
H. Termination of Mediation. The Mediator may suspend or terminate mediation whenever, in the opinion of the Mediator, the matter is not appropriate for further mediation or at the request of either party. This shall be reported to the Family Court Staff.
I. Completion of Mediation
1. In cases where the parties do not reach any agreement or mediation is terminated, the Mediator shall immediately report to the Family Court Staff, without comment on the outcome of the mediation, (i.e., a full, partial or no agreement) by using Form No. 405. Termination or non-agreement shall be without prejudice to either party.
2. In cases where agreement or partial agreement is reached as to any matter or issue, counsel or the parties shall file a Settlement Agreement or Agreed order reflecting the terms thereof.
3. The Court shall retain final authority to accept, modify, or reject any agreement pursuant to KRS 403.180.
J. Qualifications of Court Appointed Mediators (other than Family Court Staff Mediators)
1. A committee shall screen applicants, perform such other functions as requested by the Family Court and make recommendations to the Family Court regarding who should function as Court Appointed Mediators. This committee shall consist of the following: (1) the Family Court Judge; (2) One member of the Family Court Advisory Committee; (3) Three members of the County Bar Association, who shall be elected by the bar association and have been admitted to the practice of law in the Commonwealth of Kentucky for more than five years, with a substantial percent of their practice devoted to divorce and/or mediation dealing with divorce property and/or maintenance issues for the past five years; and (4) such other members as the Family Court Judge shall designate.
2. No member of the Mediation Review Committee shall be allowed to mediate cases.
K. Qualifications for Court Approved Mediators
1. A Court Ordered Mediator Shall:
a. Complete a minimum of forty (40) hours in a family mediation training program approved by the Mediation Review Committee; or
b. Have a college degree or prior education and/or experience or training in a specialized area of expertise relating to the contested issues;
c. Or be an attorney licensed to practice in the Commonwealth of Kentucky.
2. The parties may by agreement appoint a Mediator that does not satisfy these requirements.
L. Compensation of the Mediator.
The Mediator shall be compensated at the rate agreed upon by the Mediator and the parties or as ordered by the Court.

Credits

HISTORY: Amended effective April 21, 2012. Prior amendments effective July 8, 2008; February 15, 2005.
Christian Family Court Rule 703, KY R CHRISTIAN FAM CT Rule 703
Current with amendments received through November 1, 2020.
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