TABLE OF CONTENTS

I. The Mediation Process

Introduction

Steps in the Mediation Process

II. Sample Forms

Before Mediation:

Joint Application Requesting Referral of Matter to Mediation

Consent Order for Mediation

Acceptance by Mediator

The Mediation Process:

Mediation Program Conference Attendance Form

After Mediation:

Mediator's Certificate of Completion of Mediation

Survey (to be completed by Mediator, Litigants, Attorneys)

III. Register of Mediators

IV. Local Rules Referenced in Practitioner's Guide to the Mediation Process

D.N.J. LBR 2016-1 Compensation of Professionals

D.N.J. LBR 9013-1(j) Consent Order in Lieu of Motion

D.N.J. LBR 9019-2 Alternative Dispute Resolution (ADR)

V. Local Forms

Local Form 9: Chapter 7 Information for Notice of Settlement of Controversy

Local Form 10: Chapter11 Information for Notice of Settlement of Controversy

V1. Sample Forms

Joint Application Requesting Referral of Matter to Mediation

Consent Order for Mediation

Acceptance by Mediator

Mediation Program Conference Attendance Form

Mediator's Certificate of Completion of Mediation Conference

Mediation Survey

Please Note: These Forms require Adobe Acrobat Reader. Click here to download Adobe Acrobat

Introduction

Mediation is intended to afford litigants a less expensive and more expeditious alternative to traditional litigation. It is also intended to conserve judicial resources. When a contested matter is referred to mediation, proceedings relating to that matter are stayed. The purpose of this stay is to afford a reasonable period of time within which to reach a settlement. The contested matter may arise in an adversary proceeding or in the bankruptcy case. If mediation efforts are unsuccessful, the case will be restored to the active calendar.

The focus of mediation is to resolve the dispute between the parties. The mediator's role is to assist the parties in reaching a negotiated settlement by conducting meetings, defining issues, defusing emotion, and suggesting possible ways to resolve the dispute.

The mediation process requires the active and direct involvement of both parties and attorneys. The assurance of confidentiality promotes the frank and open discussion between and among parties and attorneys required for mediation to succeed.

The Practitioner's Guide outlines the steps in the mediation process and provides sample forms to facilitate the use of the process.

Steps in the Mediation Process

A:Before Mediation:

1. The parties decide on the mediation process to resolve a contested matter, or they are directed to engage in the process by the court.

2. The parties choose a mediator from the Register of Mediators. If the parties cannot agree on a mediator, the court will appoint a mediator.

3. The parties obtain the selected mediator's consent to act as mediator. (See sample form: Acceptance by Mediator.)

4. The parties file a joint application for referral to mediation and a proposed consent order for referral to mediation providing for the following, as applicable:

a) The name of the mediator chosen by the parties, or a space for the designation of a mediator by the court.

b) Agreed hourly rate to be paid to the mediator, as well as the allocation of the cost between the parties.

c) Any confidentiality arrangements agreed to by the parties.

d) A proposal regarding the amount of time to stay ongoing discovery and other pretrial procedures.

e) Written acceptance of mediator, if available, should be attached to consent order for referral to mediation.

(See sample forms: Joint Application Requesting Referral of Matter to Mediation and Consent Order for Mediation.)

NOTE: It is recommended, but not mandated, that the litigants themselves, as well as the attorneys, sign the proposed consent order for referral to mediation in order to stress the importance of direct participation in the process.

B. The Mediation Process:

1. The parties engage in mediation. Scheduling and location of mediation will be established by the mediator, but the initial conference shall be set no later than 45 days following entry of the referral order. It is imperative that the individual parties attend and participate fully in the mediation sessions.

C. After Mediation:

1. Following completion or termination of the mediation process, the mediator files a certificate of completion of mediation. (See sample form: Mediator's Certificate of Completion of Mediation.)

2. Action on outcome of mediation:

(a) Settlement:

(1) If a settlement is reached at mediation, a party designated by the mediator shall submit a fully executed stipulation and proposed order to the court within twenty (20) calendar days after the end of the mediation. It is advisable to reduce the settlement to a writing of some sort at the mediation conference. Doing so may prevent the settlement from unraveling after the parties leave the settlement table.

(2) If the contested matter or adversary proceeding is resolved, and if the nature of the dispute and settlement requires notice to creditors, the trustee or debtor-in-possession must file with the court the appropriate notice of settlement of controversy (see local forms 9 and 10) with a proposed form of order.

(3) The order approving the settlement will be entered after notice to creditors and resolution of objections, if any.

(b) No settlement:

If mediation does not result in a settlement, the contested matter will be restored to the court's calendar.

3. Mediator prepares and files with the court an application for allowance of fees, with proposed order, and sends copies to all parties who participated in the mediation process. Notice of the fee application in accordance with the Federal Rules of Bankruptcy Procedure will be sent by the clerk's office or as otherwise directed. Under D.N.J. LBR 2016-1(d), no appearance shall be required unless an objection is filed and served, or unless the court otherwise requires. The opportunity to be paid is not contingent upon the outcome of the mediation.

4. In order to assist the court in compiling useful data to evaluate the mediation program, the mediator, the litigants and the attorneys shall complete the survey form provided (see Mediation Survey) and forward it to the court at the following address:

The survey is for evaluation purposes only and is not to be filed in the case or adversary file.