Rule 12.085 - Referral to Mediation and Assignment of Mediator(1) The use of the phrase "referral to mediation" means the act of notifying the parties that they must go through Mediation Orientation as scheduled.(2) By the court: (a) In pre-judgment cases in which it appears from the pleadings that child custody, visitation or parenting time is an issue, the court shall refer the case to mediation. Cases with a pending motion to modify a judgment will be considered for mediation as funding allows. A mediator shall be assigned after a Response is filed with the court. The exception to this procedure shall be when the court decides that the case is not appropriate for mediation prior to such referral.(b) Assignment of Mediator (i) The Trial Court Administrator shall send a notice of referral to mediation to the parties. The notice shall include the names of court-approved mediators. Each party shall be entitled to object to a maximum of one mediator. To object, a party shall strike the name from the mediation notice and return the notice to the court. A mediation notice containing such objections must be received by the court within 10 days of the date of the notices.(ii) The Trial Court Administrator shall assign a mediator whose name has not been stricken from the mediator list by the parties. If a party fails to submit the mediation notice to the court within the time required in the preceding paragraph, the Trial Court Administrator shall assign a mediator.(iii) Except when otherwise mandated by this Plan or when the Presiding Judge decides otherwise, the Trial Court Administrator shall assign a mediator upon whom the parties have stipulated when that mediator is on the list of mediators approved by the court.(iv) If no approved mediators are left on the court's list after considering the parties objections to mediators due to conflict cases when a mediator may not be able to ethically or legally participate in mediation in a given case, or due to other appropriate concerns, the Trial Court Administrator shall refer the designation of a mediator to the Presiding Judge. The Presiding Judge shall have the authority to designate any person approved as a domestic relations mediator in another county or other individual who has met the qualifications for a mediator prescribed by this plan or for whom the Presiding Judge waives strict compliance, as allowed by this plan.(3) By stipulation (a) At any stage of the proceedings, the parties may sign and file with the court a request for mediation. This applies even for cases in which a party or both parties had earlier opted out of mediation.(b) Upon receipt of a request for mediation from both parties in a case where the parties had previously opted out of mediation, the Trial Court Administrator shall notify the judge assigned to hear the case or the Presiding Judge. The case shall be referred back to mediation only if the court so directs.(c) The request for mediation may be denied by the Presiding Judge or by the judge assigned to hear the case in the sole discretion of such judge. The court is not required to explain or justify a denial of a referral to mediation. Nonetheless, appropriate reasons to deny a referral to mediation would include, but not be limited to, situations in which the court concludes that such referral is a delaying tactic in a case where it appears likely that mediation could not reasonably be expected to be concluded prior to the time set for a trial or other hearing, and/or when the court determines that the request for mediation appears not to be made in good faith.(d) Except as set forth below in subparagraph (e), the court shall honor a written stipulation by both parties to a particular mediator if that mediator is on the court's list of approved mediators.(e) Parties may not stipulate to using a particular mediator from the court-approved list under the circumstances outlined in this subparagraph. If the parties had previously met with a domestic relations mediator approved by the court but mediation had not been successfully concluded, and thereafter the court receives a request from the parties to return to mediation, the case shall be referred back to mediation with the same mediator. The Trial Court Administrator may assign a different mediator at the request of the parties only if, within fifteen days from the date of inquiry by the Trial Court Administrator as to the reason for the previous termination of mediation, the original mediator tenders written confirmation to the court that the case was not sent back to the court due to domestic violence concerns by the mediator. If such confirmation is not received, the parties shall be notified that the case will not be referred back to mediation and will be set on the trial docket. To preserve the confidentiality mandated by ORS 107.785, the Trial Court Administrator shall seal in the file a mediator's written report of domestic violence concerns, and send the file to the judge assigned to hear the case for docketing of all future hearings in the case.(4) Use of Independent Mediators (a) Parties shall not be required to use a mediator who has been approved by the court for domestic relations mediation. Upon written stipulation by both parties, an independent mediator may be used, but only if the Presiding Judge approves the request. Under such circumstances, the following conditions apply:(i) The costs of the independent mediator shall be borne exclusively by the parties, and the parties shall not be entitled to any refund of the mediation fee paid by the parties to the court.(ii) Where custody and/or parenting time involving minor children will necessarily be a component of any judgment, the parties shall be required to attend the parenting education classes that are included in Mediation Orientation.(iii) No independent mediator shall be approved unless that person meets the qualifications for a mediator prescribed by this plan or unless the Presiding Judge waives strict compliance with those qualifications as allowed by this plan.(iv) The request for mediation may be denied by the Presiding Judge or by the judge assigned to hear the case, in the sole discretion of such judge. The court is not required to explain or justify a denial of referral to mediation. Nonetheless, appropriate reasons to deny a referral to mediation would include, but not be limited to, situations in which the court concludes that such referral is a delaying tactic in a case where it appears likely that mediation could not reasonably be expected to be concluded prior to the time set for trial or other hearing and/or when the court determines that the request for mediation appears not to be made in good faith.(b) If an independent mediator is selected by the parties, the parties or their attorneys shall file with the court a written stipulation indicating the name of the mediator and the date set for the first mediation session.Lincoln Supp. L. R. 12.085
Amended effective 2/1/2024.