Mass. R. Sup. Jud. Ct. 1:18

As amended through May 7, 2024

Rule 1:18 - Uniform Rules on Dispute Resolution

RULE 1.

(a)Scope, Applicability and Purpose of Rules. These rules govern court-connected dispute resolution services provided in civil and criminal cases in every department of the Trial Court. The Ethical Standards in Rule 9 also apply to neutrals who provide court-connected dispute resolution services in the Supreme Judicial Court and the Appeals Court. The purpose of the rules is to increase access to court-connected dispute resolution services, to ensure that these services meet standards of quality and procedural fairness, and to foster innovation in the delivery of these services. The rules shall be construed so as to secure those ends. To the extent that there is any conflict between these rules and the Massachusetts Rules of Civil Procedure, the Massachusetts Rules of Criminal Procedure, the Massachusetts Rules of Appellate Procedure, the Massachusetts Rules of Domestic Relations Procedure, the Juvenile Court Rules, the Standards and Forms For Probation Offices of the Probate and Family Court Department (hereinafter the "Probation Standards") promulgated by the Office of the Commissioner of Probation effective July 1, 1994, or the Rules of the Supreme Judicial Court and the Appeals Court, then the Massachusetts Rules of Civil, Criminal, Appellate, and Domestic Relations Procedure, the Juvenile Court Rules, the Probation Standards, or the Supreme Judicial Court and Appeals Court rules shall control. The Supreme Judicial Court, the Appeals Court, the Chief Justice for Administration and Management, and each Trial Court department may adopt additional rules or administrative procedures to supplement these rules, provided that they are consistent with these rules.

(b)Guiding Principles. The interpretation of these rules shall be guided by the following principles:

(i)Quality. The judiciary, collaborating with others experienced in dispute resolution, is responsible for assuring the high quality of the dispute resolution services to which it refers the public.

(ii)Integrity. Dispute resolution services should be provided in accordance with ethical standards and with the best interest of the disputants as the paramount criterion.

(iii)Accessibility. Dispute resolution services should be available to all members of the public regardless of their ability to pay.

(iv)Informed choice of process and provider. Wherever appropriate, people should be given a choice of dispute resolution processes and providers and information upon which to base the choice.

(v)Self-determination. Wherever appropriate, people should be allowed to decide upon the issues to be discussed during a dispute resolution process, and to decide the terms of their agreements.

(vi)Timely services. Dispute resolution services, to be most effective, should be available early in the course of a dispute.

(vii)Diversity. The policies, procedures and providers of dispute resolution services should reflect the diverse needs and background of the public.

(viii)Qualification of neutrals. Dispute resolution services should be performed only by qualified neutrals. There are many ways in which a neutral may become competent, and there are many ways to determine qualifications of neutrals, such as assessing performance and considering a neutral's education, training, experience and subject matter expertise.

Adopted May 1, 1998, effective June 1, 1998

RULE 2. DEFINITIONS

As used in these rules, the following terms shall have the following meanings:

"Arbitration" means a process in which a neutral renders a binding or non-binding decision after hearing arguments and reviewing evidence.

"Case evaluation" means a process in which the parties or their attorneys present a summary of their cases to a neutral who renders a non-binding opinion of the settlement value of the case and/or a non-binding prediction of the likely outcome if the case is adjudicated.

"Clerk" means the clerk, clerk-magistrate, recorder, or register of a court, or a designated assistant clerk-magistrate, assistant recorder or assistant register of probate.

"Community mediation program" means a non-profit, charitable program whose goals are to promote the use of mediation and related conflict resolution services by volunteers to resolve disputes including those that come to, or might otherwise come to, the courts.

"Conciliation" means a process in which a neutral assists parties to settle a case by clarifying the issues and assessing the strengths and weaknesses of each side of the case, and, if the case is not settled, explores the steps which remain to prepare the case for trial.

"Court" means the Land Court, the Boston Municipal Court, or a division of the District Court, the Superior Court, the Probate and Family Court, the Housing Court or the Juvenile Court. The provisions of these rules addressed to courts shall apply to judges, clerks, probation officers and other employees of these courts. For the purposes of Rule 9, "court" also includes the appellate courts.

"Court-connected dispute resolution services" means dispute resolution services provided as the result of a referral by a court. "To refer," for purposes of this definition, means to provide a party to a case with the name of one or more dispute resolution services providers or to direct a party to a particular dispute resolution service provider.

"Dispute intervention" means a process used in the Probate and Family Court and in the Housing Court in which a neutral identifies the areas of dispute between the parties, and assists in the resolution of differences.

"Dispute resolution service" means any process in which an impartial third party is engaged to assist in the process of settling a case or otherwise disposing of a case without a trial, including arbitration, mediation, case evaluation, conciliation, dispute intervention, early neutral evaluation, mini-trial, summary jury trial, any combination of these processes, and any comparable process determined by the Chief Justice for Administration and Management of the Trial Court or the Supreme Judicial Court to be subject to these rules. The term "dispute resolution service" does not include a pretrial conference, an early intervention event, a screening, a trial, or an investigation.

"Early intervention" means a compulsory, judicially supervised event, early in the life of a case, with multiple objectives relating to both scheduling of litigation and selection of dispute resolution services.

"Early neutral evaluation" means case evaluation which occurs early in the life of a dispute.

"Immediate family" means the individual's spouse, domestic partner, guardian, ward, parents, children, and siblings.

"Mediation" means a voluntary, confidential process in which a neutral is invited or accepted by disputing parties to assist them in identifying and discussing issues of mutual concern, exploring various solutions, and developing a settlement mutually acceptable to the disputing parties.

"Mini-trial" means a two-step process to facilitate settlement in which (a) the parties' attorneys present a summary of the evidence and arguments they expect to offer at trial to a neutral in the presence of individuals with decision-making authority for each party, and (b) the individuals with decision-making authority meet with or without the neutral to discuss settlement of the case.

"Neutral" means an individual engaged as an impartial third party to provide dispute resolution services and includes but is not limited to a mediator, an arbitrator, a case evaluator, and a conciliator. "Neutral" also includes a master, clerk, clerk-magistrate, register, recorder, family service officer, housing specialist, probation officer, and any other court employee when that individual is engaged as an impartial third party to provide dispute resolution services. For purposes of Rule 9, "neutral" also means an administrator of a program providing court-connected dispute resolution services.

"Program" means an organization with which neutrals are affiliated, through membership on a roster or a similar relationship, which administers, provides and monitors dispute resolution services. A program may be operated by a court employee or by an organization independent of the court, including a corporation or a governmental agency. A program operated by a court employee may include one or more court employees or non-employees or a combination of court employees and non-employees on its roster.

"Provider" or "provider of dispute resolution services" means a program which provides dispute resolution services or a neutral who provides dispute resolution services.

"Screening" means an orientation session in which parties to a case and/or their attorneys receive information about dispute resolution services. The case is reviewed to determine whether referral to a dispute resolution service is appropriate, and, if so, to which one. In a screening, there may also be discussion to narrow the issues in the case, to set discovery parameters, or to address other case management issues.

"Summary jury trial" means a non-binding determination administered by the court in which (a) the parties' attorneys present a summary of the evidence and arguments they expect to offer at trial to a six-person jury chosen from the court's jury pool, (b) the jury deliberates and returns a non-binding decision on the issues in dispute, (c) the attorneys may discuss with the jurors their reaction to the evidence and reasons for the verdict, and (d) the presiding neutral may be available to conduct a mediation with the parties.

Adopted May 1, 1998, effective June 1, 1998

RULE 3. ADMINISTRATIVE STRUCTURE FOR COURT-CONNECTED DISPUTE RESOLUTION SERVICES

(a)Appointment of Standing Committee on Dispute Resolution. There shall be a Standing Committee on Dispute Resolution consisting of up to twenty persons appointed by the Supreme Judicial Court, in consultation with the Chief Justice for Administration and Management of the Trial Court and the Chief Justices of the Trial Court departments. The Committee shall include at least three members designated by the Chief Justice for Administration and Management. Members shall be appointed for three year terms and may be reappointed for additional terms when their terms expire. The Standing Committee shall be composed of: judges; other court personnel; attorneys; members of the public; academics; providers of dispute resolution services, including representatives of community mediation programs; and, if possible, designees of the speaker of the House of Representatives and the president of the Senate. In order to achieve diversity in the membership of the Standing Committee, the Supreme Judicial Court shall make funds available for expenses associated with participation in the Committee.

(b)Duties of Standing Committee on Dispute Resolution. The Standing Committee shall advise the Supreme Judicial Court and the Chief Justice for Administration and Management of the Trial Court with respect to standards for court-connected dispute resolution services and the implementation and oversight of court-connected dispute resolution services throughout the Trial Court. The Standing Committee shall work to ensure access to court-connected dispute resolution services, to ensure the quality of the services, and to foster innovation in the delivery of the services.

(c)Trial Court Departments. The Chief Justice of each Trial Court department may appoint an advisory committee on that department's court-connected dispute resolution services composed of judges, other court personnel, attorneys, academics, members of the public, and providers of dispute resolution services, including representatives of community mediation programs where they provide services to that court department. In order to achieve diversity in the membership of an advisory committee, the court shall seek to make funds available for expenses associated with participation in the committee. An advisory committee shall function so as to avoid conflict of interest or the appearance of conflict of interest. Each such Chief Justice may designate an employee as the director of court-connected dispute resolution for that department. Every Trial Court chief justice who approves dispute resolution programs pursuant to Rule 4(a) shall develop written policies and procedures governing program operations and record-keeping that will enable evaluation of the program.

(d)Local Dispute Resolution Services Coordinator. The First Justice or the justice with administrative supervision of each court or division within every Trial Court department shall designate one court staff member as the dispute resolution services coordinator for that court or division. By agreement of affected First Justices, one person may be designated as dispute resolution services coordinator for divisions or courts in more than one department which are located in the same or a nearby building. The dispute resolution services coordinator shall maintain information about court-connected dispute resolution services and assist the public in making informed choices about the use of those services. The coordinator, in collaboration with the program or programs to which the court division refers cases, shall develop a system to record and compile data as required by Rule 6(g).

(e)Technical Assistance for Implementation of Dispute Resolution Services. The Chief Justice for Administration and Management shall, subject to appropriation, provide advice and consultation to Trial Court departments, courts, advisory committees and designated dispute resolution staff to assist in developing and operating court-connected dispute resolution services in accordance with the rules.

Adopted May 1, 1998, effective June 1, 1998. Amended July 21, 2004, effective January 1, 2005

RULE 4. IMPLEMENTATION OF COURT-CONNECTED DISPUTE RESOLUTION.

(a) Development of List of Approved Programs.

(i) The Chief Justice of each Trial Court department, subject to review for compliance by the Chief Justice for Administration and Management, shall approve programs to receive court referrals in accordance with these rules. In order to be approved, programs must: agree to meet the operations standards in Rule 7; agree to ensure that the neutrals on their roster who provide court-connected dispute resolution services meet the qualifications standards in Rule 8; and agree to ensure that the neutrals on their roster follow the ethical standards in Rule 9 when providing court-connected dispute resolution services. The list of approved programs shall be developed and maintained through an open process which includes at least the following: advertisement of the opportunity to apply to be on the list; fair assessment of programs; efforts to ensure diversity among neutrals as to race, gender, ethnicity, experience, and training; policies about the length and termination of participation on the list; and procedures for removing a program from the list for cause and/or as a result of a complaint filed pursuant to Rule 4(f).

(ii) The Chief Justice for Administration and Management shall distribute a combined list of the programs approved pursuant to subparagraph (i). The list shall include information as to each program regarding geographic region, fees, and dispute resolution processes; and information as to each program's expertise, including process and subject matter expertise.

(b)Trial Court Department Plans. Each Trial Court department shall develop plans each fiscal year for the use of court-connected dispute resolution services by the courts in the department. The Chief Justice shall develop the plan in consultation with the department advisory committee, the department director of court-connected dispute resolution services, the courts in the department and the Standing Committee. Services may be provided only by programs on the list developed pursuant to paragraph (a). The plan shall set forth information about court-connected dispute resolution services in the department, including at least the following: current status, goals and objectives, plans for the coming year, any plans for collaborating with other departments, a budget request, case selection and screening criteria, plans for early intervention, and needs for education programs. Where appropriate, each portion of the plan shall address: plans with respect to access to dispute resolution services, the quality of the services, and efforts to foster innovation in the delivery of services. Plans shall ensure that court-connected dispute resolution services are available to those who lack the financial resources to pay for the services and those who would not otherwise have access to the services. The plans shall be submitted by April 1 of each year to the Chief Justice for Administration and Management for review and approval.

(c)Pilot Programs for Mandatory Participation in Dispute Resolution Services. Any Trial Court department may propose to the Chief Justice for Administration and Management for review and approval an experimental pilot program which requires parties in civil cases to participate in non-binding forms of dispute resolution services. No Trial Court department shall administer such a pilot program without the approval of the Chief Justice for Administration and Management. Case types not suitable for dispute resolution services should be identified. The pilot program may provide for the mandatory participation of the parties and shall be assessed regularly to control quality. The minimal requirements for mandatory participation shall be as follows:

(i) each party shall be provided with an opportunity to terminate the dispute resolution services, upon motion to the court for good cause shown, but unwillingness to participate shall not be considered good cause;

(ii) the court shall give preference to a dispute resolution process upon which the parties agree;

(iii) the court shall explicitly inform parties that, although they are required to participate, they are not required to settle the case while participating in dispute resolution services; and

(iv) no fees may be charged for mandatory participation in dispute resolution services, but the court may charge fees for elective dispute resolution services.

(d)Funding of Court-connected Dispute Resolution Services. As part of the annual budget requests required by G.L. c. 211B, § 10 (viii) and (x), the Chief Justice of each Trial Court department shall include a request for funding for court-connected dispute resolution services. The budget request shall provide for the funding of court-connected dispute resolution services for those parties who lack the financial resources to pay for the services or who would not otherwise have access to the services. Funds may be used for approved programs to provide screening and to provide and/or administer the services. Budget requests shall estimate funds needed to maintain previously funded services provided by approved programs. Additional amounts shall be used for the expansion or improvement of services or for innovative services. Expenditures shall be subject to the approval of the Chief Justice for Administration and Management after consultation with the Standing Committee.

(e)Contracts for Court-connected Dispute Resolution Services.

(i) If public funds are appropriated or otherwise available and allocated by the Chief Justice for Administration and Management of the Trial Court for contracts with court connected dispute resolution programs, the Chief Justice for Administration and Management, in consultation with First Justices or other justices with administrative responsibility for courts and the Chief Justices of affected departments, shall issue one or more requests for proposals for dispute resolution services to be provided by contracts with approved programs, shall select programs through a competitive bidding process, and shall execute contracts for services on behalf of departments and courts which may extend for no more than three years. These contracts may provide for a program to receive payments approved under paragraph (d) and may provide that a court will refer all or most of its cases requiring dispute resolution services to one or more contracting programs.

(ii) If public funds are not involved, but courts seek an exclusive arrangement with a program or programs for court-connected dispute resolution services, the Chief Justice of the affected department or his or her designee shall, in consultation with the Chief Justice for Administration and Management, issue one or more requests for proposals to be provided by contracts with approved programs, shall select programs through a competitive process, and, with the approval of the Chief Justice for Administration and Management, shall execute contracts for services on behalf of departments and courts which may extend for no more that three years. These contracts may provide that a court will refer all or most of its cases requiring dispute resolution services to one or more contracting programs.

(iii) In selecting programs with which to contract, the Chief Justice for Administration and Management, or the Chief Justice of the department, as applicable, is encouraged to give preference to programs which demonstrate a record of and commitment to maintaining a diverse roster and operating in a manner which is accountable to the community.

(iv) The competitive bidding requirements in this subsection shall not apply to programs in which dispute resolution services are provided exclusively by court employees.

(f) Complaint Mechanism. The Chief Justice for Administration and Management, in consultation with the Chief Justices of the departments and with the advice of the Standing Committee, shall develop a uniform procedure for handling complaints regarding court-connected dispute resolution services.

Adopted May 1, 1998, effective June 1, 1998. Amended July 21, 2004, effective January 1, 2005

RULE 5. EARLY NOTICE OF COURT-CONNECTED DISPUTE RESOLUTION SERVICES.

Clerks shall make information about court-connected dispute resolution services available to attorneys and unrepresented parties. This information should state that selection of court-connected dispute resolution services can occur at the early intervention event or sooner, and that no court may compel parties to mediate any aspect of an abuse prevention proceeding under G.L. c. 209A, § 3. Insofar as possible, information should be available in the primary language of the parties. Attorneys shall: provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent.

Adopted May 1, 1998, effective February 1, 1999

RULE 6. DUTIES OF COURTS WITH RESPECT TO COURT-CONNECTED DISPUTE RESOLUTION SERVICES

(a)Referral of Cases. No court may refer cases to a provider of dispute resolution services unless the provider is an approved program included on the list developed pursuant to Rule 4(a). In all cases, courts shall inform parties that they are free to choose any approved program on the list, subject to such reasonable limitations as the court may impose, or any other provider of dispute resolution services. If the parties are unable or unwilling to choose a program from the list or another provider, a court may make a referral to a specific program on the list in which the court has confidence, whether or not the court has a contract for services with that program. The court shall make a reasonable effort to distribute such specific referrals fairly among programs on the list, taking into consideration geographic proximity, subject matter competence, special needs of the parties, and fee levels. In the alternative, a court may refer all or most of its cases requiring dispute resolution services to one or more approved programs in which the roster consists exclusively of one or more court employees or with which it has a contract for services pursuant to Rule 4(e). Notwithstanding the foregoing, a court may refer a case to a provider that is not on the list in exceptional circumstances, when special needs of the parties cannot be met by a program on the list. The judge shall report any such referral and the exceptional circumstances which required it to the Chief Justice of the department. In a criminal case, the court shall consult with the prosecuting attorney and obtain the approval of the defendant and, where applicable, the victim, before making a referral to a dispute resolution program.

(b) Screening. In civil cases, courts may require parties and/or their attorneys to attend a screening session or an early intervention event regarding court-connected dispute resolution services except for good cause shown.

(c)Time for Dispute Resolution. A court may establish a deadline for the completion of a court-connected dispute resolution process, which may be extended by the court upon a showing by the parties that continuation of the process is likely to assist in reaching resolution.

(d) Choice. No court shall require parties to participate in dispute resolution services without meeting the minimal requirements set forth in Rule 4(c), except that Probate and Family Courts may require parties to participate in dispute intervention. Except in a case affected by a pilot program under Rule 4(c) or a case involving such a referral to dispute intervention, the court shall inform litigants, both at the time of referral and at the beginning of the dispute resolution process, that the decision to participate in a dispute resolution process is voluntary.

(e)Space for Dispute Resolution Sessions. Courts may, subject to guidelines issued by the Chief Justice for Administration and Management of the Trial Court, provide available courthouse space or other resources for court-connected dispute resolution services provided by approved programs. The space provided shall be sufficiently private and readily accessible. Reasonable accommodation shall be made for disabled individuals.

(f) Communication with Program or Neutral.

(i) The court shall give a program which is providing court-connected dispute resolution services sufficient information to process the case effectively.

(ii) The program shall give the court's administrative staff sufficient case-specific and aggregate information to permit monitoring and evaluation of the services.

(iii) Communication with the court during the dispute resolution process shall be conducted only by the parties or with their consent. The parties may agree, as part of the dispute resolution process, as to the scope of the information which they, the program, or the neutral will provide to the court. Absent an agreement of the parties and subject to the provisions of Rule 9 regarding confidentiality and subparagraph (iv) below, the program or neutral may provide only the following information to the court: a request by the parties for additional time to complete dispute resolution, the neutral's assessment that the case is inappropriate for dispute resolution, and the fact that the dispute resolution process has concluded without parties' having reached agreement.

(iv) At the conclusion of conciliation or dispute intervention, the program or neutral may communicate to the court recommendations, a list of those issues which are and are not resolved, and the program's or neutral's assessment that the case will go to trial or settle, provided that the parties are informed at the initiation of the process that such communication may occur.

(g)Data Collection. The court, in collaboration with the approved program or programs to which it refers cases, shall develop a system to record accurately and compile regularly data sufficient to track cases, monitor services, and provide any information required or requested by the applicable Trial Court department chief justice or the Chief Justice for Administration and Management.

(h)Intake and Selection. Every court shall evaluate cases to ensure that they are appropriate for dispute resolution based on the case selection criteria of the applicable department developed pursuant to Rule 4(b).

(i)Inappropriate Pressure to Settle. Courts shall inform parties that, unless otherwise required by law, they are not required to make offers and concessions or to settle in a court-connected dispute resolution process. Courts shall not impose sanctions for nonsettlement by the parties. The court shall give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties. In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.

(j)Sanctions for Failure to Attend Sessions. A court may impose sanctions for failure without good cause to attend a mandatory screening session, an early intervention event, or a scheduled dispute resolution session.

Adopted May 1, 1998, effective February 1, 1999

RULE 7. DUTIES OF APPROVED PROGRAMS WITH RESPECT TO COURT-CONNECTED DISPUTE RESOLUTION SERVICES

(a)Program Administration. Programs shall be monitored and evaluated on a regular basis. Settlement rates shall not be the sole criterion for evaluation. Every program shall evaluate its neutrals on a regular basis. Every program shall develop and comply with written policies and procedures governing program administration and operations, including policies regarding evaluation, facilities, communication with the court, data collection, pressure to settle, and intake and selection, which are consistent with policies developed by Trial Court departments pursuant to Rule 3(c) and with Rules 4(a) and 6(a), (e), (f), (g), (h) and (i). A program may refuse to accept a referral from a court if the case does not meet the program's intake and selection criteria.

(b)Diversity. Programs shall be designed with knowledge of and sensitivity to the diversity of the communities served. The design shall take into consideration such factors as the languages, dispute resolution styles, and ethnic traditions of communities likely to use the services. Programs shall not discriminate against staff, neutrals, volunteers, or clients on the basis of race, color, sex, age, religion, national origin, disability, political beliefs or sexual orientation. Programs shall actively strive to achieve diversity among staff, neutrals, and volunteers.

(c) Rosters. Programs shall (i) assemble, maintain and administer rosters of qualified neutrals in conformity with these rules; (ii) except in the case of programs in which the roster consists exclusively of court employees, make a reasonable effort to distribute referrals fairly among individuals on the list, taking into consideration geographic proximity, subject matter competence, special needs of the parties, scheduling, and fee levels; (iii) adopt a fair and reasonable method by which qualified individuals may join the roster at its inception, when vacancies occur, or when the caseload requires additional neutrals; and (iv) adopt a fair and reasonable method by which individuals may be removed from the roster, including a provision for a periodic review of the roster. The methods used by the program for adding and removing neutrals shall be set forth in writing and made available to individuals applying for affiliation.

(d)Presence of Advisers. Parties, in consultation with their attorneys, if any, shall be permitted to decide whether their attorney, advocate or other adviser will be present at court-connected dispute resolution sessions.

(e)Fees. Programs may charge fees for service. Parties shall not be charged a fee for attendance at a mandatory screening session or an early intervention event, or for dispute resolution services provided by court employees. Fees charged by a provider of court-connected dispute resolution services shall be approved by the Chief Justice of the applicable court department. The fee schedule shall provide for fee waived or reduced fee services to be made available to indigent and low income litigants. Fees may not be contingent upon the result of the dispute resolution process or the amount of the settlement. Neutrals may assist parties to negotiate an equitable allocation of fees.

(f)Dispute Resolution Sessions. The program shall make reasonable efforts to schedule dispute resolution sessions at the convenience of the parties. The program shall allow adequate time in the dispute resolution session to discuss issues and reach settlement.

(g)Written Agreement. If a settlement is reached, the agreement shall be prepared in writing and signed by the parties, who shall forward for docketing a notice of the disposition of the case to the clerk of the court in which the case is pending. The neutral may participate in the preparation of the written agreement. At the parties' request, the court may allow an oral agreement instead of a written one.

(h) Orientation and Supervision of Neutrals. The program shall ensure that neutrals are familiar with the policies and operations of the court and the program. The program shall supervise its neutrals. During dispute resolution sessions, newly trained neutrals shall have immediate access to an experienced neutral.

(i) Enforcement of Qualifications Standards and Ethical Standards. Each approved program shall be responsible for enforcing the qualifications standards in Rule 8 and the ethical standards in Rule 9, and for taking appropriate action if a neutral on its roster fails or ceases to meet the qualifications standards or violates the ethical standards. Appropriate actions include referral for further training, suspension from the roster, or removal from the roster. If the Chief Justice of a Trial Court Department directs a program to take such action as a result of a complaint about the neutral and the program refuses to act, the Chief Justice may revoke the program's status as a program approved to receive referrals from that department.

Adopted May 1, 1998, effective February 1, 1999. Amended November 20, 2003, effective January 1, 2005.

RULE 8. QUALIFICATIONS STANDARDS FOR NEUTRALS

(a)Purpose and applicability. The purpose of setting qualifications standards for neutrals who receive court referrals is to foster high quality dispute resolution services. This rule shall apply to neutrals who provide mediation, arbitration, conciliation, case evaluation, dispute intervention, mini-trials or summary jury trials in court-connected programs.

(b)General Provisions.

(i)General Qualifications Requirements. To be qualified to provide dispute resolution services for cases referred by a court to an approved program, a neutral shall satisfy the requirements specified in this rule for the particular process which he or she provides unless exempted pursuant to Rule 8(k). A neutral may meet one or all of these requirements using the alternative method, if any, specified for the particular process, pursuant to Rule 8(j). To remain qualified, neutrals shall satisfy the continuing education and continuing evaluation requirements, if any, specified in this rule for the particular process.

(ii)Additional Qualifications. Trial Court Departments may establish additional qualifications for neutrals in approved programs in addition to those set forth in this rule provided they are consistent with these rules. In establishing such additional standards, court departments may provide for consideration of such factors as an individual's experience as a neutral, educational background, work experience, or subject matter expertise, and may also require such neutrals to complete specialized training or demonstrate subject matter expertise. Academic degrees and professional licensure may be among the factors considered but cannot be used as preclusive criteria by court departments in establishing additional qualifications for mediators or arbitrators participating in approved programs.

(iii)Competence. In qualifying mediators and arbitrators to handle court referrals, approved programs may consider such factors as an individual's experience as a mediator or arbitrator, educational background, work experience and subject matter expertise. Academic degrees and professional licensure may be among the factors considered but cannot be used as preclusive criteria by approved programs in qualifying mediators and arbitrators for inclusion in court panels. Academic degrees and professional licensure may be used as preclusive criteria for qualifying conciliators, case evaluators, mini-trial neutrals and summary jury trial neutrals.

(iv)Duties of the Chief Justice for Administration and Management. The Chief Justice for Administration and Management (CJAM) shall oversee and monitor the implementation of this rule, and suggest changes as needed. The CJAM shall, in consultation with the Standing Committee, develop guidelines for implementing the provisions of this rule. The CJAM shall collect, publish and distribute to approved programs any changes in the guidelines, and shall maintain the annual certifications submitted by approved programs as to the training, evaluation, mentoring and continuing education of neutrals.

(v)Duties of Approved Programs. Each approved program shall ensure that the neutrals on its roster meet the applicable training, mentoring, evaluation, continuing education, continuing evaluation, professional and experience requirements set forth in this rule and the guidelines adopted pursuant to Rule 8(b)(iv), and any additional qualification requirements adopted by a Trial Court Department. Each approved program shall ensure that the neutrals meet the standards set forth in the rule and guidelines, that any alternative method relied upon by a neutral to meet the standards is in compliance with Rule 8(j) and the guidelines, and that reliance upon the limited exemption is in compliance with Rule 8(k). To carry out these duties, each program shall take the following specific actions:

(a) Attest in its application for program approval that it will assign cases referred by a court only to neutrals who meet the qualifications standards;

(b) Maintain for the tenure of the neutral's association with the program, and for three years thereafter, documentation which demonstrates that the neutral meets the qualifications standards. Such documentation shall include, without limitation, the following:

(i) Name of the neutral;

(ii) Name of the training organization where the neutral satisfactorily completed any required training (or documentation of the neutral's compliance with the alternative method of meeting any training requirement pursuant to Rule 8(j) );

(iii) Outcome of any required mentoring and evaluation for each neutral (or documentation of the neutral's compliance with the alternative method of meeting any evaluation requirement pursuant to Rule 8(j) );

(iv) Documentation of the neutral's participation in any required continuing education and in any required continuing evaluation;

(v) Documentation demonstrating that the neutral meets any applicable requirements as to professional licensure, experience or subject matter expertise; and

(vi) Documentation demonstrating that the neutral qualifies for the limited exemption set forth in Rule 8(k).

(c) Certify annually to the AOTC that the neutrals on its roster meet the requirements for training, mentoring and evaluation, and continuing education set forth in this rule and the guidelines.

(d) Make the documentation demonstrating a neutral's qualification and the documentation demonstrating the program's compliance with the rules and the guidelines available to the AOTC and to the Chief Justices of the Trial Court Departments for inspection and copying upon request.

(c) Mediators.

(i)Training Requirement. A mediator shall successfully complete a basic mediation training course of at least thirty hours and a court orientation, both of which comply with the guidelines adopted pursuant to Rule 8(b)(iv). A mediator shall also complete any additional, specialized training required by a Trial Court Department.

(ii)Mentoring and Evaluation Requirement. A mediator shall complete the mentoring and evaluation requirements contained in the Guidelines adopted pursuant to Rule 8(b)(iv).

(iii)Continuing Education. A mediator shall participate in any continuing education required by the approved program with which he or she is affiliated or by the court department in which he or she is providing services.

(iv)Continuing Evaluation. A mediator shall participate in regular evaluation as required by Rule 7.

(d) Arbitrators.

(i)Training Requirement. An arbitrator shall successfully complete a basic arbitration training course of at least eight hours and a court orientation, both of which comply with the guidelines adopted pursuant to Rule 8(b)(iv). An arbitrator shall also complete any additional, specialized training required by a Trial Court Department.

(ii)Mentoring and Evaluation Requirement. An arbitrator shall complete the mentoring and evaluation requirements contained in the guidelines adopted pursuant to Rule 8(b)(iv).

(iii)Continuing Education. An arbitrator shall participate in any continuing education required by the approved program with which he or she is affiliated or by the court department in which he or she is providing services.

(iv)Continuing Evaluation. An arbitrator shall participate in regular evaluation as required by Rule 7.

(e) Conciliators.

(i)Professional Qualifications. A conciliator must be admitted to the bar of the Commonwealth of Massachusetts, be in good standing with the Board of Bar Overseers, and have engaged in the practice of law within the Commonwealth of Massachusetts for at least three years.

(ii)Training Requirement. A conciliator shall successfully complete a conciliation training course of at least eight hours and a court orientation, both of which comply with the guidelines adopted pursuant to Rule 8(b)(iv). A conciliator shall also complete any additional, specialized training required by a trial court department.

(iii)Mentoring and Evaluation Requirement. A conciliator shall, if required to do so at the discretion of the approved program with which he or she is affiliated, complete the mentoring and evaluation requirements of that program contained in the guidelines adopted pursuant to Rule 8(b)(iv).

(iv)Continuing Education. A conciliator shall participate in any continuing education required by the approved program with which he or she is affiliated or by the court department in which he or she is providing services.

(v)Continuing Evaluation. A conciliator shall participate in regular evaluation as required by Rule 7.

(f)Case Evaluators.

(i)Professional Qualifications. A case evaluator must be admitted to the bar of the Commonwealth of Massachusetts, be in good standing with the Board of Bar Overseers, and must have seven years of trial experience within the Commonwealth of Massachusetts as an attorney or judge.

(ii)Training Requirement. A case evaluator shall successfully complete a basic case evaluation training of at least eight hours and a court orientation, both of which comply with the guidelines adopted pursuant to Rule 8(b)(iv). A case evaluator shall also complete any additional, specialized training required by a Trial Court Department for case evaluators.

(iii)Mentoring and Evaluation Requirement. A case evaluator shall complete the mentoring and evaluation requirements contained in the guidelines adopted pursuant to Rule 8(b)(iv).

(iv)Continuing Education. A case evaluator shall participate in any continuing education required by the approved program with which he or she is affiliated or by the court department in which he or she is providing services.

(v)Continuing Evaluation. A case evaluator shall participate in regular evaluation as required by Rule 7.

(g)Mini-Trial Neutrals.

(i)Professional Qualifications. A mini-trial neutral shall have at least ten years experience evaluating legal disputes as a judge, arbitrator, attorney, or executive level decision-maker.

(ii)Training Requirements. A mini-trial neutral shall successfully complete the training required for mediators in Rule 8(c)(i), and the training required for case evaluators in Rule 8(f)(ii).

(iii)Mentoring and Evaluation Requirement. A mini-trial neutral shall complete the mentoring and evaluation requirements contained in the guidelines adopted pursuant to Rule 8(b)(iv).

(iv)Continuing Education. A mini-trial neutral shall participate in any continuing education required by the approved program with which he or she is affiliated or by the court department in which he or she is providing services.

(v)Continuing Evaluation. A mini-trial neutral shall participate in regular evaluation as required by Rule 7.

(h)Summary Jury Trial Neutrals.

(i)Professional Qualifications. A summary jury trial neutral shall be an arbitrator qualified under this rule, an attorney, or a former judge, with at least ten years of experience as an arbitrator, trial attorney, or judge. The summary jury trial neutral must be in good standing in any jurisdiction in which he or she is licensed to practice law.

(ii)Continuing Education. A summary jury trial neutral shall participate in any continuing education required by the approved program with which he or she is affiliated or by the court department in which he or she is providing services.

(iii)Continuing Evaluation. A summary jury trial neutral shall participate in regular evaluation as required by Rule 7.

(i) Dispute Intervention Neutrals.

(i)Training Requirement. A provider of dispute intervention services shall successfully complete a training course and a court orientation, both of which comply with the guidelines adopted pursuant to Rule 8(b)(iv). A provider of dispute resolution services shall also complete any additional specialized training required by the Trial Court Department in which he or she is providing dispute intervention services.

(ii)Mentoring and Evaluation Requirement. A provider of dispute intervention services shall complete the mentoring and evaluation requirements set forth in the guidelines adopted pursuant to Rule 8(b)(iv).

(iii)Continuing Education. A provider of dispute resolution services shall participate in any continuing education required by the approved program with which he or she is affiliated or by the court department in which he or she is providing services.

(iv)Continuing Evaluation. A provider of dispute resolution services shall participate in regular evaluation as may be required by the relevant Trial Court Department.

(j)Alternative Methods of Satisfying Requirements. A neutral may be qualified by a program to handle cases referred by a court by demonstrating that he or she meets the alternative methods set forth in the guidelines of satisfying the training, mentoring and evaluation requirements set forth in this rule and the guidelines. Programs that seek to qualify neutrals through the alternative methods provision are required to compile necessary documentation pursuant to Rule 8(b)(v) and applicable guidelines.

(k) Limited Exemption from Training, Mentoring and Evaluation Requirements. As a general rule, all neutrals in approved programs shall satisfy the training, mentoring and evaluation requirements set forth in Rule 8. However, the Chief Justice of any Trial Court Department may elect, as a one-time exception to this rule, to exempt mediators, arbitrators, case evaluators, and conciliators from those requirements, subject to the provisions set forth below. The Chief Justice for Administration and Management shall establish a process for notification and a deadline for submission by departmental Chief Justices of their decision to utilize the exemption, and for programs to apply for the exemption.

(i)One Time Exemption of Certain Neutrals. This exemption will be a one-time option available only to those mediators, arbitrators, case evaluators and conciliators who meet the requirements set forth in Rule 8(k). No other neutral shall be exempted from the training, mentoring or evaluation requirements of Rule 8.

(ii)Designation of Neutrals. Each program approved on or before July 1, 2002, by a Department in which this exemption is available pursuant to this Rule and which continues as an approved program on the date on which Rule 8 becomes effective shall submit to the Chief Justice of that Department pursuant to the process established by the Chief Justice for Administration and Management, a list of any mediators, arbitrators, case evaluators and conciliators who qualify for the exemption. The program shall include a complete and detailed description of the qualifications of each such mediator, arbitrator, case evaluator or conciliator as evidence of his or her eligibility.

(iii)Requirements for Exemption. A program may consider a neutral eligible for this exemption only if he or she was serving as of July 1, 2002, on a panel of a program approved on or before that date which continues as an approved program on the date on which Rule 8 becomes effective. In addition, a program shall consider the neutral's overall experience and other factors under Rule 8 ( e.g. prior training, mentoring, evaluation, the recency of his or her experience and the number and types of cases handled). An eligible individual must have served in the process for which he or she is seeking exemption for five years during the last six years prior to July 1, 2002, and meet the following additional requirement:

(a)Mediators. Must have provided at least 300 hours of mediation during that period.

(b)Arbitrators. Must have provided at least 150 hours of arbitration during that period.

(c)Case Evaluators. Must have provided at least 100 hours of case evaluation during that period.

(d)Conciliators. Must have provided at least 100 hours of conciliation during that period.

(iv)Transferability of Exemption. A mediator, arbitrator, case evaluator or conciliator who qualifies for this exemption in a Trial Court Department shall be qualified to provide services in the process in which he or she is exempted in another approved program within that Department subject to the approval of the other program. A mediator, arbitrator, case evaluator or conciliator who seeks exemption in another Department must meet the exemption through a program approved in that other Department.

(v)Limitations on Exemption. This provision does not exempt any mediator, arbitrator, case evaluator or conciliator from complying with the continuing education and continuing evaluation requirements of Rule 8.

(l)Effective Date. The effective date of this rule shall be January 1, 2005, except that to be qualified to provide dispute intervention, individuals employed by the courts on the effective date of this rule shall have until January 1, 2007 to demonstrate compliance with the requirements set forth in this rule. Employees hired to provide dispute intervention after the effective date of this rule must satisfy all the requirements of this rule within thirty-six (36) months of the date of hire.

Adopted November 20, 2003, effective January 1, 2005

RULE 9. ETHICAL STANDARDS

(a)Introduction. These Ethical Standards are designed to promote honesty, integrity and impartiality by all neutrals and other individuals involved in providing court-connected dispute resolution services. These standards seek to assure the courts and citizens of the Commonwealth that such services are of the highest quality, and to promote confidence in these dispute resolution services. In addition, these standards are intended as a foundation on which appellate courts and Trial Court departments can build their dispute resolution policies, programs and procedures to best serve the public. These Standards apply to all neutrals as defined in these Standards when they are providing court-connected dispute resolution services for the Trial Court and the appellate courts, including those who are state or other public employees. State and other public employees are subject to the Massachusetts Conflict of Interest Law, M.G.L. c. 268A, and therefore, to the extent that these standards are in any manner inconsistent with M.G.L. c. 268A, the statute shall govern. In addition, to the extent that these standards are in any manner inconsistent with the Standards and Forms For Probation Offices of the Probate and Family Court Department promulgated by the Office of the Commissioner of Probation effective July 1, 1994, the Probation Standards shall govern. All courts providing dispute resolution services and all court-connected dispute resolution programs shall provide the neutrals with a copy of these Ethical Standards. These Standards shall be made a part of all training and educational programs for approved programs, and shall be available to the public.

(b) Impartiality. A neutral shall provide dispute resolution services in an impartial manner. Impartiality means freedom from favoritism and bias in conduct as well as appearance.

(i) A neutral shall provide dispute resolution services only for those disputes where she or he can be impartial with respect to all of the parties and the subject matter of the dispute.

(ii) If at any time prior to or during the dispute resolution process the neutral is unable to conduct the process in an impartial manner, the neutral shall so inform the parties and shall withdraw from providing services, even if the parties express no objection to the neutral continuing to provide services.

(iii) No neutral or any member of the neutrals immediate family or his or her agent shall request, solicit, receive, or accept any in-kind gifts or any type of compensation other than the court-established fee in connection with any matter coming before the neutral.

(c)Informed Consent. The neutral shall make every reasonable effort to ensure that each party to the dispute resolution process (a) understands the nature and character of the process, and (b) in consensual processes, understands and voluntarily consents to any agreement reached in the process.

(i) A neutral shall make every reasonable effort to ensure at every stage of the proceedings that each party understands the dispute resolution process in which he or she is participating. The neutral shall explain (aa) the respective responsibilities of the neutral and the parties, and (bb) the policies, procedures and guidelines applicable to the process, including circumstances under which the neutral may engage in private communications with one or more of the parties.

(ii) If at any time the neutral believes that any party to the dispute resolution process is unable to understand the process or participate fully in it -- whether because of mental impairment, emotional disturbance, intoxication, language barriers, or other reasons -- the neutral shall (aa) limit the scope of the dispute resolution process in a manner consistent with the party's ability to participate, and/or recommend that the party obtain appropriate assistance in order to continue with the process, or (bb) terminate the dispute resolution process.

(iii) Where a party is unrepresented by counsel and where the neutral believes that independent legal counsel and/or independent expert information or advice is needed to reach an informed agreement or to protect the rights of one or more of the parties, the neutral shall so inform the party or parties.

(iv) A neutral may use his or her knowledge to inform the parties deliberations, but shall not provide legal advice, counseling, or other professional services in connection with the dispute resolution process.

(v) The neutral shall inform the parties of their right to withdraw from the process at any time and for any reason, except as is provided by law or court rule.

(vi) In mediation, case evaluation, and other processes whose outcome depends upon the agreement of the parties, the neutral shall not coerce the parties in any manner to reach agreement.

(vii) In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.

(d)Fees. A neutral shall disclose to the parties the fees that will be charged, if any, for the dispute resolution services being provided.

(i) A neutral shall inform each party in a court-connected dispute resolution process in writing, prior to the start of the process, of (AA) the fees, if any, that will be charged for the process, (bb) if there will be a fee, whether it will be paid to the neutral, court, and/or the program, and (cc) whether the parties may apply for a fee-waiver or other reduction of fees.

(ii) If a fee is charged for the dispute resolution process, the neutral shall enter into a written agreement with the parties, before the dispute resolution process begins, stating the fees and time and manner of payment.

(iii) Fee agreements may not be contingent upon the result of the dispute resolution process or amount of the settlement.

(iv) Neutrals shall not accept, provide, or promise a fee or other consideration for giving or receiving a referral of any matter.

(v) If the court has established fees for its dispute resolution services, no neutral shall request, solicit, receive, or accept any payment in any amount greater than the court-established fees when providing court-connected dispute resolution services.

(e)Conflict of Interest. A neutral shall disclose to all parties participating in the dispute resolution process all actual or potential conflicts of interest, including circumstances that could give rise to an appearance of conflict. A neutral shall not serve as a neutral in a dispute resolution process after he or she knows of such a conflict, unless the parties, after being informed of the actual or potential conflict, give their consent and the neutral has determined that the conflict is not so significant as to cast doubt on the integrity of the dispute resolution process and/or neutral.

(i) As early as possible and throughout the dispute resolution process, the neutral shall disclose to all parties participating in the process, all actual or potential conflicts of interest, including but not limited to the following:

(aa) any known current or past personal or professional relationship with any of the parties or their attorneys;

(bb) any financial interest, direct or indirect in the subject matter of the dispute or a financial relationship (such as a business association or other financial relationship) with the parties, their attorneys, or immediate family member of any party or their attorney, to the dispute resolution proceeding; and

(cc) any other circumstances that could create an appearance of conflict of interest.

(ii) Where the neutral determines that the conflict is so significant as to cast doubt on the integrity of the dispute resolution process and/or neutral, the neutral shall withdraw from the process, even if the parties express no objection to the neutral continuing to provide services.

(iii) Where the neutral determines that the conflict is not significant, the neutral shall ask the parties whether they wish the neutral to proceed. The neutral shall obtain consent from all parties before proceeding.

(iv) A neutral must avoid even the appearance of a conflict of interest both during and after the provision of services.

(aa) A neutral shall not use the dispute resolution process to solicit, encourage or otherwise procure future service arrangements with any party.

(bb) A neutral may not subsequently act on behalf of any party to the dispute resolution process, nor represent one such party against the other, in any matter related to the subject of the dispute resolution process.

(cc) A neutral may not subsequently act on behalf of any party to the dispute resolution process, nor represent one such party against the other, in any matter unrelated to the subject of the dispute resolution process for a period of one year, unless the parties to the process consent to such action or representation.

(v) A neutral shall avoid conflicts of interest in recommending the services of other professionals.

(f)Responsibility to Non-Participating Parties. A neutral should consider, and where appropriate, encourage the parties to consider, the interests of persons affected by actual or potential agreements and not participating or represented in the process.

(i) If a neutral believes that the interests of parties not participating or represented in the process will be affected by actual or potential agreements, the neutral should ask the parties to consider the effects of including or not including the absent parties and/or their representatives in the process. This obligation is particularly important when the interests of children or other individuals who are not able to protect their own interests are involved.

(g)Advertising , Soliciting, or Other Communications by Neutrals. Neutrals shall be truthful in advertising, soliciting, or other communications regarding the provision of dispute resolution services.

(i) A neutral shall not make untruthful or exaggerated claims about the dispute resolution process, its costs and benefits, its outcomes, or the neutrals qualifications and abilities.

(ii) A neutral shall not make claims of specific results, benefits, outcomes, or promises which imply favor of one side over another.

(h)Confidentiality. A neutral shall maintain the confidentiality of all information disclosed during the course of dispute resolution proceedings, subject only to the exceptions listed in this section.

(i) The information disclosed in dispute resolution proceedings that shall be kept confidential by the neutral includes, but is not limited to: the identity of the parties; the nature and substance of the dispute; the neutral's impressions, opinions, and recommendations; notes made by the neutral; statements, documents or other physical evidence disclosed by any participant in the dispute resolution process; and the terms of any settlement, award, or other resolution of the dispute, unless disclosure is required by law or court rule.

(ii) Confidentiality vis-a-vis nonparties. The neutral shall inform the participants in the dispute resolution process that he or she will not voluntarily disclose to any person not participating in the mediation any of the information obtained through the process, unless such disclosure is required by law.

(iii) Confidentiality within mediation. A neutral shall respect the confidentiality of information received in a private session or discussion with one or more of the parties in a dispute resolution process, and shall not reveal this information to any other party in the mediation without prior permission from the party from whom the information was received.

(iv) Neutrals who are part of a court-connected dispute resolution program may, for purposes of supervising the program, supervising neutrals and monitoring of agreements, discuss confidential information with other neutrals and administrative staff in the program. This permission to discuss confidential information does not extend to individuals outside their program.

(v) Neutrals may, with prior permission from the parties, use information disclosed by the parties in dispute resolution proceedings for research, training, or statistical purposes, provided the materials are adapted so as to remove any identifying information.

(i)Withdrawing from the Dispute Resolution Process. A neutral shall withdraw from the dispute resolution process if continuation of the process would violate any of the Ethical Standards, if the safety of any of the parties would be jeopardized, or if the neutral is unable to provide effective service.

(i) Withdrawal must be accomplished in a manner which, to the extent possible, does not prejudice the rights or jeopardize the safety of the parties.

(ii) A neutral may withdraw from the dispute resolution process if the neutral believes that (AA) one or more of the parties is not acting in good faith; (bb) the parties' agreement would be illegal or involve the commission of a crime; (cc) continuing the dispute resolution process would give rise to an appearance of impropriety; (dd) in a process whose outcome depends upon the agreement of the parties, continuing with the process would cause severe harm to a non-participating party, or the public; and (ee) continuing discussions would not be in the best interest of the parties, their minor children, or the dispute resolution program.

Adopted May 1, 1998, effective February 1, 1999

SUMMARY OF MAJOR PROVISIONS OF UNIFORM RULES ON DISPUTE RESOLUTION

RULE 1. SCOPE, APPLICABILITY AND PURPOSE OF RULES. The Rules govern court connected dispute resolution in the Trial Court. Only Rule 9 (the ethical standards) applies to court connected dispute resolution in the appellate courts. If the Rules conflict with other court rules, the other court rules govern.

RULE 2. DEFINITIONS. Defines key terms used in the rules. "Court-connected dispute resolution services" means ADR services provided as a result of a court referral, which includes providing a party with the name of one or more ADR provider or directing a party to a particular ADR provider. "Neutral" means a mediator or other ADR practitioner.

RULE 3. ADMINISTRATIVE STRUCTURE FOR COURT-CONNECTED DISPUTE RESOLUTION SERVICES. Provides for the appointment of a Standing Committee on Dispute Resolution, to advise the courts' leaders about ADR. Each Trial Court department may appoint an ADR advisory committee and designate an ADR director. Each local court is required to designate an ADR coordinator. The Trial Court is to provide ADR advice and consultation if funds are available.

RULE 4. IMPLEMENTATION OF COURT-CONNECTED DISPUTE RESOLUTION. Each Trial Court department Chief Justice is required to approve programs qualified to receive court referrals, and the Trial Court will distribute a combined list of approved programs. Each Trial Court department must prepare an annual ADR plan and seek funds needed for ADR under the plan. Mandatory ADR is limited to approved pilot programs which meet certain criteria. Contracts with ADR programs must be awarded through a competitive process. Contracts may provide funds, provide for a court to refer all or most cases to the program, or both.

RULE 5. EARLY NOTICE OF COURT-CONNECTED DISPUTE RESOLUTION SERVICES. Clerks are required to provide information about court-connected dispute resolution services to attorneys and unrepresented parties.

RULE 6. DUTIES OF COURTS WITH RESPECT TO COURT-CONNECTED DISPUTE RESOLUTION SERVICES. Courts may refer cases only to approved ADR programs, and must attempt to distribute cases fairly among approved programs, taking into account geographic proximity and other factors. A court may send all or most of its cases to one program if it has a contract with that program under Rule 4. Courts may require parties and/or attorneys to attend ADR screening sessions, may set deadlines for ADR processes, and may provide space for ADR sessions.

RULE 7. DUTIES OF APPROVED PROGRAMS WITH RESPECT TO COURTCONNECTED DISPUTE RESOLUTION SERVICES. Approved programs are required to undergo regular monitoring and evaluation, to develop and comply with written policies and procedures, to assemble and update rosters of neutrals through fair processes, and to orient and supervise neutrals. Programs may charge fees approved by the Chief Justice of the Trial Court department.

RULE 8. RESERVED FOR QUALIFICATIONS STANDARDS.

RULE 9. ETHICAL STANDARDS

Introduction. If there is a conflict between the Ethical Standards and the Rules of Professional Responsibility, the Rules of Professional Responsibility control. Some of the provisions of the Ethical Standards apply to mediation and other consensual conflict resolution processes and not to arbitration.

Impartiality. Impartiality means freedom from favoritism or bias in conduct and appearance. A neutral must be impartial regarding the parties and the subject matter. If a neutral cannot be impartial at any point in the process, he or she must withdraw even if the parties do not object.

Informed consent. The neutral must make all reasonable efforts to help each party understand the process and the agreement and to ensure that each party consents to any agreement. If the neutral thinks a party is unable to participate effectively, the neutral should limit the scope of the process or end it. A neutral should tell a party if the neutral believes the party needs the assistance of a lawyer or other expert information or advice in order to reach an informed agreement. A neutral may give information to the parties but may not give legal advice, counseling or other professional services. The neutral must inform the parties that they may withdraw from the process at any time for any reason. The neutral must not coerce the parties to reach an agreement. In dispute intervention, the neutral must, while remaining impartial, raise questions so the parties may consider whether they have the information they need to reach a fair and fully informed agreement.

Fees. The neutral must inform the parties of any fees that will be charged, to whom the fee is paid, and whether the parties may apply for a fee waiver or reduction. Before the process begins, there must be a written agreement between the neutral and the parties regarding the fee and the time and manner of payment. The neutral must not give or receive a fee for a referral. A neutral must not solicit or accept payment above the court-established fee.

Conflict of interest. A neutral must disclose all actual or potential conflicts of interest. A neutral should not serve if he or she knows of a conflict except under certain circumstances set out in the rule. A neutral must withdraw if a conflict is significant. A neutral may proceed if a conflict is not significant and the parties all consent. A neutral must avoid even the appearance of conflict.

Responsibility to non-participating parties. A neutral should consider and encourage the parties to consider the interests of persons--especially children--who are not participating in the process but who are affected by actual or potential agreements.

Advertising, soliciting or other communications by neutrals. Neutrals must be truthful in advertising and must not make claims of specific results or benefits of the process which imply favor of one side over another.

Confidentiality. All information obtained in a dispute resolution process is confidential except for limited exceptions detailed in the rule. Also, all information obtained in a private discussion with one party is confidential and will not be revealed to any other party without permission of the party from whom it was obtained. The neutral must inform the parties that he or she will not disclose information voluntarily unless required by law to do so.

Withdrawal. A neutral must withdraw if continuing in the process would violate an Ethical Standard or jeopardize the safety of a party or if the neutral cannot provide effective service. The neutral must attempt, while withdrawing, to protect the parties' safety and rights. A neutral may withdraw under certain specific circumstances set out in the rule.

FREQUENTLY ASKED QUESTIONS REGARDING UNIFORM RULES ON DISPUTE RESOLUTION

(Revised to reflect the adoption of Rule 8 and six years of operation of the Uniform Rules)

(1) What is the purpose of the Uniform Rules on Dispute Resolution?

Answer: The Uniform Rules are designed to implement the Policy Statement on Dispute Resolution Alternatives adopted in 1993 by the Supreme Judicial Court ("SJC")in consultation with the Chief Justice for Administration and Management of the Trial Court ("CJAM"). The 1993 Policy Statement states that the court is responsible for ensuring the quality of court-connected alternative dispute resolution services, that there should be consistent standards governing these services, that alternative dispute resolution should be available throughout the court system, and that access to these services should not depend on the financial resources of the parties.

(2) What activity is covered by the Uniform Rules? What are "court-connected dispute resolution services?"

Answer: The Uniform Rules regulate "court-connected dispute resolution services." These are dispute resolution services provided as a result of a referral by a court. A court referral takes place whenever a judge or other court employee provides a party to a case with the name of one or more dispute resolution providers or directs a party to a particular dispute resolution provider.

(3) What activities constitute "dispute resolution services?"

Answer: Under the Uniform Rules, "dispute resolution services" refer to processes in which a neutral third party is engaged to assist in settling a case or otherwise disposing of a case without a trial. "Dispute resolution services" include arbitration, mediation, case evaluation, conciliation, dispute intervention, early neutral evaluation, mini-trial, summary jury trial, any combination of these, or any comparable process as determined by the CJAM or the SJC. The Uniform Rules specifically provide that certain activities are not considered "dispute resolution services." These exempt activities are pretrial conferences, early intervention events, screenings, trials, and investigations. As a result, these activities are not governed by the Uniform Rules.

(4) Are judges, other court employees and lawyers considered "neutrals" under the Uniform Rules when they are providing dispute resolution services?

Answer: Under the Uniform Rules, sitting judges are not included in the definition of a "neutral" even when they are engaged in activities that otherwise would be considered court connected dispute resolution services, such as mediating a case during a settlement conference with counsel. However, other court employees such as Clerks and their assistants, Registrars and their assistants, Probation Officers including Family Service Officers, and Housing Specialists, as well as retired judges who are not sitting as recall judges, are considered "neutrals" when they are providing court-connected dispute resolution services. Likewise, lawyers are considered "neutrals" for purposes of the Uniform Rules when they are providing court connected dispute resolution services.

(5) What qualifications must a person meet in order to serve as a neutral and perform court connected dispute resolution services?

Answer: The qualifications for neutrals providing court-connected dispute resolution services are described in Rule 8. The Rule establishes requirements for training, mentoring and evaluation continuing education and evaluation for the following seven categories of neutrals: mediators, arbitrators, case evaluators, conciliators, mini-trial neutrals, summary jury trial neutrals, and dispute intervenors. In addition, Rule 8 provides for an alternative method for meeting these qualification requirements. Further, to be eligible to serve as a neutral under the Uniform Rules, a person must be affiliated with a program that is approved to provide dispute resolution services to the Trial Court, must observe the program's requirements, must meet the requirements of Rule 8 and the accompanying Guidelines, and must observe the Ethical Standards contained in Rule 9 of the Uniform Rules.

(6) What is the Alternative Method for training, mentoring and evaluation in Rule 8 ?

Answer: The alternative method allows a neutral to satisfy the qualification requirements of Rule 8 by showing prior training, mentoring and evaluation experiences which is the substantial equivalent to the standard qualification requirement. This method was created to assist neutrals who were trained in another state or before the adoption of Rule 8 to satisfy the requirements of Rule 8. See Rule 8(j) and the Guidelines for Implementation of Qualifications Standards.

(7) Are there continuing education requirements for neutrals?

Answer: Yes. A neutral is required to participate in continuing education as directed by the approved program with which he or she is affiliated or by the court department in which he or she is providing services. Approved programs are responsible for enforcing the qualifications standards in Rule 8. Each program has certified in its application that it has implemented a continuing education policy for all neutrals on its roster. The continuing education requirement is designed to build skills, share best practices, and keep current on alternative dispute resolution issues and trends. The amount and content of continuing education is left to the discretion of the approved program. See the Commentary to Rule 8(c) (iii).

(8) Are any neutrals exempt from the training requirements of Rule 8 ?

Answer: Currently, no. Rule 8(k) allowed for a one-time exemption to the training mentoring and evaluation requirements for mediators, arbitrators, case evaluators and conciliators. But the time for exercising this exemption has expired, and all neutrals must now be trained in order to provide service to the Trial Court.

(9) What constitutes a program under the Uniform Rules? Can an individual be a program?

Answer: Under the Uniform Rules, a "program" is defined as an organization with which neutrals are affiliated, through membership on a roster or similar relationship, which administers, provides, and monitors dispute resolution services. A program may be operated by a court employee or by an organization independent of the court, including a corporation or governmental agency. A program operated by a court employee may include one or more court employees or non-court employees, or a combination of court employees and non-court employees on its roster. The Standing Committee has adopted commentary to Rule 2 which clarifies that a program must consist of a group of people.

(10) Why do the Uniform Rules allow the approval only of programs, rather than individual neutrals to provide court-connected dispute resolution services?

Answer: The Uniform Rules on Dispute Resolution were designed to provide the greatest amount of ADR service to the Trial Court with the least amount of centralized administrative bureaucracy. Many programs that serve the Trial Court have had long experience in overseeing rosters of neutrals, and the model adopted by the Uniform Rules recognizes and builds on that expertise.

(11) How do programs become eligible to receive court referrals?

Answer: As of February 1, 1999, court referrals for ADR may be made only to approved programs. Programs must be approved by the chief justice of a Trial Court Department in order to be eligible to receive referrals from a court in that department. The Trial Court has established uniform application forms, procedures and time periods which are to be used by all programs seeking approval from any of the court departments. The next application process will be announced in the fall of 2006 with approvals for the period from January 1, 2007 through December 31, 2009.

(12) What requirements must ADR programs meet to be approved under the Uniform Rules?

Answer: In order to qualify for approval, a program must meet standards of operation set forth in Rule 7 of the Uniform Rules, and certify that neutrals on its roster meet the qualification standards set forth in Rule 8 and the Guidelines and comply with the ethical standards contained in Rule 9 of the Uniform Rules.

(13) Will all referrals be made to programs outside the court?

Answer: Not necessarily. Under the Uniform Rules, courts have several choices about how to offer court-connected dispute resolution services. Courts may approve programs consisting exclusively of court employees, programs consisting exclusively of non-court employees, programs containing a combination of both court employees and non-court employees, or one or more of each.

(14) How will courts decide which program should receive a referral?

Answer: Where there is more than one approved program serving a court, parties must be given a choice among approved programs. If the parties are unable to choose, the court may refer the case to a specific program. If the court has several approved programs, it must distribute ADR referrals in a fair way.

(15) How does a person become associated with a program in order to be eligible to receive court referrals under the rules?

Answer: Individuals who are unaffiliated with a specific program have two options. First, they may apply to join the panel or roster of an existing approved program. Second, they may organize a new program outside the court and, when the application process is open, that program may apply for approval to the Chief Justice of the appropriate department of the Trial Court. Under Rule 7(c), any program providing court-connected dispute resolution services must adopt a fair and reasonable method to permit qualified individuals to join its roster.

(16) How will the Trial Court determine what dispute resolution services will be offered and where services will be available?

Answer: Each Trial Court department will determine what ADR services to provide in its department, and will set forth its plans in an annual plan required by Rule 4(b). The ability of the Trial Court to meet the goals of the 1993 Policy Statement is constrained by the annual budget appropriation to the judiciary which, up to this point, has funded programs offering free mediation services. The Trial Court seeks additional funding to expand access to services and to support screening and administration and to provide technical assistance to programs.

(17) Do the Uniform Rules regulate the fees charged by programs?

Answer: Yes. Fees charged by providers of court-connected dispute resolution services must be approved by the chief justice of the Trial Court department in which the services are provided. The Boston Municipal Court, the District Court and the Juvenile Court Departments have not approved programs in their departments that charge fees to litigants. The services of approved programs in the Land Court, the Probate and Family Court and the Superior Court Departments are predominately fee based. Dispute resolution services by Housing Specialists in the Housing Court Department and dispute intervention by Probation Officers in the Probate and Family Court Department are "in-house" programs and do not charge fees to litigants. Parties may not be charged a fee for attendance at a mandatory screening session or an early intervention event, or for dispute resolution services provided by court employees. Provision is made for reduced fee or fee waivers in the case of indigent persons. In no case, may the fee for court connected dispute resolution services be made contingent on the outcome of the dispute resolution process.

(18) Who will pay for court-connected ADR services?

Answer: Some services are free, because they are provided by court employees or by community mediation programs which support themselves through other sources. Parties pay fees for other services. The Trial Court has received legislative funding to provide free mediation in small claims and minor criminal cases by community mediation programs and for permanency mediation services in the Juvenile and Probate and Family Court Departments.

(19) Do the Uniform Rules affect the activities of neutrals outside the court in the private marketplace?

Answer: No. The Uniform Rules do not regulate the conduct or activities of persons or organizations involved in providing dispute resolution services where there has been no court referral. Only "court-connected dispute resolution services" are regulated by the Uniform Rules. For example, a Family Service Officer assigned to the Probate and Family Court Department of the Trial Court would be governed by the Uniform Rules when engaging in "dispute intervention" in cases assigned to her by the Probate court, but would not be governed by the Uniform Rules in her work as a volunteer neutral for a community mediation program when she provides dispute resolution services to persons who were not referred to the program by a court. Likewise, a lawyer in private practice who is on a panel of a bar association sponsored conciliation program that has an affiliation with a District Court is governed by the Uniform Rules when acting as a conciliator in a case referred to the program by the court, but is not governed by the Uniform Rules when acting as a neutral in cases that he receives in his own practice or through his firm's ADR group without a court referral.

(20) Can a party in a court case be ordered to participate in alternative dispute resolution under the Uniform Rules?

Answer: Generally, no. The consent of the parties is necessary before a court may refer or order a party to attend or to participate in any dispute resolution service. There are, however, two exceptions to this rule. First, the Probate and Family Court may order parties to participate in dispute intervention conducted by Family Service Officers in the Probate and Family Court department. Second, the Uniform Rules do recognize the authority of the CJAM (as set forth in G.L. c. 211B, § 19 ) to approve experimental, pilot programs for mandatory, non-binding dispute resolution. Also, parties can be ordered to attend screening conferences, early intervention events and pretrial conferences, where the use of ADR may be discussed. Furthermore, the Uniform Rules require that, except in the case of dispute intervention and any pilot programs for mandatory ADR, parties must be informed that participation in court connected ADR is voluntary.

(21) If a party before the court decides to use alternative dispute resolution, is that party required to use a court-approved program?

Answer: No. The Uniform Rules recognize that parties have a right to choose dispute resolution services completely outside the court system in the private marketplace. However, as noted above, in the Probate and Family Court department, the court may order parties to participate in a non-binding ADR process provided by probation officers known as dispute intervention. Following the dispute intervention, parties in such cases may pursue other dispute resolution options outside the court in the private marketplace subject to reasonable requirements relating to scheduling that may be imposed by the Probate Court.

(22) Is court-connected ADR a confidential process?

Answer: In general, yes. The Uniform Rules establish an ethical obligation that requires neutrals in all court-connected ADR processes to observe standards of confidentiality that are spelled out in detail in Rule 9(h). Under the Uniform Rules, however, neutrals in conciliation and dispute intervention may communicate to the court a list of resolved and unresolved issues, and an assessment of whether the case will go to trial. Parties must be informed in advance about this communication. For other processes, unless the parties consent, no communication with the court is allowed other than a request for additional time, an assessment that the case is inappropriate for ADR, or the fact that the process has concluded without agreement. The Uniform Rules do not change current Massachusetts law regarding confidentiality in mediation. There is a statutory privilege which makes mediation a confidential process under certain conditions. See G.L. c. 233, § 23C. The ethical rule is consistent with the statute.

(23) What is the relationship between the Uniform Rules and other court rules?

Answer: The rules were designed to complement and to be consistent with existing court rules. However, in the event it is discovered that there are conflicts, the Uniform Rules provide that other court rules will govern. As a result, if, for example, there are conflicts between the ethical standards in the Uniform Rules and the professional canons of ethics for clerks or attorneys under other court rules, the professional canons govern the situation. Also, each department of the Trial Court can adopt additional rules regarding dispute resolution that go beyond the Uniform Rules so long as they are consistent with the Uniform Rules.

(24) How is an agreement reached through ADR enforced?

Answer: The Uniform Rules state that an agreement reached through ADR must be reduced to writing and signed by the parties, and that the clerk must be informed of the disposition. Such an agreement is thus enforceable in the same manner as any other agreement, according to contract law. In certain courts - including the Probate and Family Court and some divisions of the Housing Court - a judge must review an agreement reached through ADR.

(25) If there is no program approved for a particular court, may that court refer litigants to a program approved for a neighboring court?

Answer: If the parties request a referral to ADR and it is an appropriate case for ADR, a court for which no programs have been approved may inform the parties that they may seek services at an approved program in a neighboring court. The court may provide parties with the list of approved programs to assist them in finding high quality ADR services.

(26) Will the application process for program approval be re-opened at some point?

Answer: Yes. The District Court department is accepting applications for approval on an ongoing basis from programs which will serve previously unserved courts. All programs currently providing dispute resolution services in the Trial Court have been approved to provide court-connected services through December 31, 2006. The Chief Justice for Administration and Management has established a uniform application procedure, including application forms for use by all departments in order to achieve consistency throughout the Trial Court. The next application process will be announced in the fall of 2006 with approvals for the period from January 1, 2007 through December 31, 2009.

(27) How do the courts track referrals to ADR programs?

Answer: The Chief Justice for Administration and Management has approved a referral form, with instructions, and transmitted it to each Trial Court department, with authority for the Chief Justice of that department to customize it. The departments have made these forms available to the divisions in their departments.

(28) Will data be kept on court referrals to ADR programs?

Answer: Yes, approved programs are required by Rule 6(g) to compile data on cases referred to them for dispute resolution services on a regular basis and report caseload data to the court. See the Trial Court Policy on Data Collection, the Dispute Resolution Program Report Form and the Guidelines for the Dispute Resolution Program Report Form. These documents are found in this edition of the Uniform Rules.

(29) How will Rule 5 be implemented?

Answer: Rule 5 requires courts to make information about ADR available to attorneys and unrepresented litigants. Attorneys must provide the information to their clients, discuss the advantages and disadvantages of ADR, and certify their compliance with this requirement. The Supreme Judicial Court Standing Committee on Dispute Resolution has created "A Guide to Court-Connected Alternative Dispute Resolution Services" to assist in the implementation of Rule 5. The Guide can be found on the Trial Court's Website at www.mass.gov/courts/admin/legal.html. In addition, the Trial Court has created a Policy on Rule 5, a Uniform Counsel Certification Form and Department specific Exemptions to the Counsel Certification form. These documents are found in this edition of the Uniform Rules.

Mass. R. Sup. Jud. Ct. 1:18