R.i. Sup. Ct. R. 35

As amended through June 7, 2024

Rule 35 - Appellate Mediation Program

(a)Purpose of the Rule. The purpose of this rule is to afford a meaningful opportunity to the parties in all eligible civil appeals to achieve a resolution of their disputes in a timely manner as early in the appellate process as feasible through the assistance of the Supreme Court Appellate Mediation Program and with the help of designated mediators.

(b)Eligibility. All civil cases that have been appealed from a trial court will be eligible for participation in this program with the following exceptions:

(1) Applications for post-conviction relief;

(2) Petitions for habeas corpus;

(3) Cases brought by prisoners in the custody of the Department of Corrections;

(4) Cases in which one (1) or more parties are not represented by an attorney (unless the case is specifically included at the direction of the Supreme Court or by order of a mediator justice);

(5) Appeals from the Family Court;

(6) Juvenile cases; and

(7) Petitions for extraordinary relief, including all prerogative writs, provided, however, that a petition for a prerogative writ brought originally in this Court may be assigned to the Appellate Mediation Program by order of the Court at the time the prerogative writ is issued.

Criminal cases will not be included in the Appellate Mediation Program. Criminal cases will be construed to include cases on review from traffic tribunals of the state or municipalities, or adjudication of offenses by municipal courts, however designated.

The assignment and scheduling of mediations for civil cases that meet the eligibility requirements and are appropriate for mediation shall be within the discretion of the Director and the staff of the Appellate Mediation Program. Any civil case that has been appealed from the trial court may be directed by the Supreme Court to participate in the Appellate Mediation Program.

At any time during the appellate process, the Supreme Court may order participation in the program, or any party in a civil case may request participation in the program on a voluntary basis.

(c)Mediators. Mediators will be designated retired justices of the Supreme Court, retired judicial officers of trial courts, other judges, or persons who may from time to time be designated by the Chief Justice in a particular proceeding.

(d)Procedures Relating to Submitting and Scheduling Cases for Mediation.

(1)Notice of Eligibility. If, upon initial review following the filing of a Notice of Appeal, a civil case is deemed to be eligible for mediation, the Office of the Appellate Mediation Program will send a notice to the parties indicating the mediation case number and the due date of the Mediation Statement, which shall be twenty (20) days from the date of the Notice of Eligibility. If, upon initial review, a case is deemed to be ineligible for mediation, a notice regarding such ineligibility shall be sent to the parties and the case will proceed in accordance with these rules.

(2)The Mediation Statement. The Mediation Statement, comprised of Parts I and II, shall be filed with the Appellate Mediation Program within twenty (20) days of the date of the Notice of Eligibility. The most current version of the Mediation Statement is located on the Judiciary's website at www.courts.ri.gov under the heading of Public Resources, Forms, Supreme Court.

The Case Information Form (Part I of the Mediation Statement) shall include the procedural history of the case, including the type of judgment entered, the amount of any monetary judgment and/or injunctive relief, the facts giving rise to the initial dispute, the history of negotiation(s), including any demand(s) that have been transmitted by the plaintiff(s), as well as any counteroffer(s) that have been made by the defendant(s). The attorney for the plaintiff(s) or other claimant(s) will include a list of out-of-pocket expenses upon which the claim(s) for compensation is based in whole or in part, as well as a description of physical and other injuries upon which the claim(s) for compensation is based. The Case Information Form shall be filed electronically with the Appellate Mediation Program and shall be served upon all opposing attorneys.

The parties shall also complete a Confidential Mediation Statement (Part II of the Mediation Statement) to be filed with the Appellate Mediation Program. The Confidential Mediation Statement shall include significant factors that could affect the party's chances of prevailing on appeal, a description of why past efforts at negotiation have failed, the priorities of the parties, and possible acceptable outcomes to the mediation process. The statement should be sufficiently detailed to enable the mediator to determine the areas of agreement and disagreement and to consider any other relevant information that would assist the mediator in the resolution of the dispute. To maintain the confidentiality of the mediation process, the Confidential Mediation Statement shall be filed only with the Appellate Mediation Program and shall not be provided to the opposing attorney. The attorneys may be required to supplement a Mediation Statement with additional relevant information at any time prior to the mediation session.

As a condition for participation in mediation, the parties shall include a statement that counsel has been authorized to negotiate on behalf of the client(s), with full authority to make and/or accept offers. If the attorney is not so authorized, arrangements must be made to have the client(s) or authorized representative(s) available at the mediation session, or available for consultation by telephone at the time of the mediation session. At any time during the mediation process, the mediator-justice may request the record be transferred for reference at the mediator's discretion.

In the event that the judgment has not included all parties or all claims for relief, a judgment shall be requested in the trial court pursuant to Rule 54(b).

(3)Mediation Scheduling. Following review of the Mediation Statements submitted by all parties, a case may be scheduled for mediation or deemed to be inappropriate for mediation proceedings. In either circumstance, a notice shall be sent to all parties and the case shall proceed to mediation or shall proceed in accordance with these rules.

(e)Ordering of Transcript, Transmission of the Record, and Compliance With Rules of Appellate Procedure. In order to expedite the mediation process and spare the parties as much initial expense as possible, the time for ordering of the transcript in Rule 10(b)(1) with respect to cases eligible for mediation, shall be extended to a date sixty (60) days from the filing of the notice of appeal, and the time for transmittal of the record of the trial court to the Supreme Court under Rule 11(a) shall be extended to a date sixty (60) days from the date of the ordering of the transcript. The Rules of Appellate Procedure are not suspended during participation in the Appellate Mediation Program except as expressly provided for herein.

(f)Mediation Session. At the time of the mediation session, the attorneys for the parties should have had a prior meeting with their clients and opposing parties in order to seek as much agreement on issues, including settlement issues, as possible. The attorney should have obtained authority from their client(s) to make demands and counteroffer(s) to the fullest extent possible. Client(s) and/or representatives of client(s) should be available at the mediation session or by telephone in order to furnish additional authority that may be required in order to achieve a successful mediation in the course of the session.

(g)Confidentiality. All documents filed, and statements made in furtherance of mediation, including, but not limited to, the history of negotiation, listing of out-of-pocket expenses, injuries, responses by the parties, counteroffers, and memoranda relating to the narrowing of issues, will be confidential. The only portion of the mediation process that will be public is the fact that the session took place and that the case has been settled, if such a result is reached.

(h)Sanctions. A party or the attorney for a party who fails to participate in a mediation session after notice, or fails to provide the necessary preliminary documents and other information required for a meaningful mediation session, or fails to keep confidential any mediation statements or documents, or fails to participate in the mediation session in good faith, or otherwise fails to follow the provisions of this rule, may be prohibited from filing further pleadings with the Clerk of the Supreme Court relevant to the pending appeal, or otherwise be subject to sanctions to be imposed after hearing by the Supreme Court or the mediator. Sanctions may be brought either on motion by a party, or by the mediator or the Supreme Court. Such sanctions may include monetary fines, costs, attorney fees, or orders that may deny or grant relief to appellant(s) or to appellee(s) as circumstances and justice may require.

R.i. Sup. Ct. R. 35

Amended effective 6/19/2020; Revised 10/1/2023.