Vt. R. Civ. P. 16.3

As amended through May 6, 2024

Rule 16.3 - Mediation

(a) Applicability; When Mediation Required.

(1) Except as provided in paragraph (2), the parties must participate in mediation pursuant to this rule unless excused by the judge.

(2) Unless the judge orders otherwise, mediation shall not be required under this rule in the following cases:

(A) Small claims actions under the Vermont Rules of Small Claims Procedure;

(B) Actions in which at or before the filing of the last required pleading, the parties jointly certify that they have in good faith engaged in mediation regarding the dispute that is the subject of the action and file with the court a report of the mediator, describing the process employed and the results;

(C) Actions to foreclose a mortgage or evict a tenant;

(D) Actions to renew a judgment;

(E) Appeals under Rules 74-75; and

(F) Proceedings for a writ of habeas corpus or for post-conviction relief.

(b)Stipulation for Mediation.

(1)When filed. In every action in which mediation is required under this rule, the parties must file a stipulation for mediation within thirty days of the filing of the last answer. Ifthe parties fail to do so, the court may appoint a mediator and set a deadline for mediation.

(2)Contents. The stipulation for mediation must contain:

(A) The designation of a specific individual, who need not be an attorney, to serve as the-mediator;

(B) Any agreement concerning the payment of the mediator's fees and expenses; and

(C) A deadline for the completion of mediation.

(3)Participation. All parties and their counsel must attend a scheduled mediation in person unless the parties stipulate that the mediation may be conducted remotely by video or by telephone, or the court, in its discretion, excuses a person from participation entirely, or authorizes a person, party, or all parties to participate by remotely by video or telephone. A corporation, partnership, or other entity that is a party, and a liability insurer that is defending the action or that sues in the name of its insured, must each be represented by a person (other than outside counsel) who has settlement authority and authority to enter stipulations. With the agreement of all parties and the mediator, any nonparty having an interest that may be materially affected by the outcome of the proceeding, or whose presence is essential to its resolution, may be invited to attend the session in person or by counsel.

(c)Mediators. The following provisions apply to mediations held pursuant to this rule:

(1)Fees and Expenses; Payment for Services; Taxation as Costs .

(A) The fees and expenses of a mediator selected by the parties will be agreed upon by the parties and the mediator.

(B) Each party must pay an equal share of the fees and expenses of any selected or designated mediator unless otherwise agreed or ordered. Any party that believes it is financially unable to pay the fee may file a motion with the court requesting that mediation not be required in the case.

(C) If mediation under this rule does not result in settlement or other final disposition of the action, payments made to a mediator may be taxed as costs to the prevailing party in the discretion of the court.

(2)Impartiality; Disclosure; Conflict of Interest.. A mediator selected by the parties or designated by the clerk must not accept the assignment, or must withdraw, if the neutral mediator does not reasonably believe that the assignment can be undertaken impartially. If the mediator accepts the assignment, the mediator must disclose at any time to the parties any interest or relationship likely to affect his or her impartiality or to create an appearance of bias. If a mediator selected by the parties does not accept the assignment or withdraws, or if any party objects to a mediator on grounds of conflict of interest, unless otherwise provided by the agreement or by law, the parties must agree on another mediator within fourteen days or the clerk will select another mediator.

(d)Excuse or Modification for Cause. The court at any time, by its own order or on the motion of a party, may for good cause excuse any patty or parties from the application of any or all provisions of this rule or may modify provisions of the rule to fit particular circumstances.

(e)Confidentiality. All written or oral communications made in connection with or during a mediation proceeding conducted under this rule are governed by chapter 194 of Title 12 of the Vermont Statutes Annotated.

(f)Sanctions. If a party, lawyer, or other person who is required to participate in a mediation under this rule does not appear at the mediation, or does not comply with any other requirement of this rule or any order made under it, unless that person shows good cause for not appearing or not complying, the court will impose one or more of the following sanctions:

(1) The Court will require the party or lawyer, or both, to pay the reasonable expenses, including attorney's fees and costs, of the opposing party, and any fees and expenses of the mediator, incurred by reason of the nonappearance, unless the comi finds that such an award would be unjust in the circumstances.

(2) In addition, the court may order the parties to submit to mediation, dismiss the action or any part of the action, render a decision or judgment by default, or impose any other sanction that is just and appropriate in the circumstances.

V.R.C.P. 16.3

Added Oct. 5, 1999, eff. 12/31/1999; amended Mar. 6, 2002, eff. 7/1/2002; 6/16/2003, eff. 11/1/2003; 12/21/2004, eff. 2/21/2005; 11/22/2011, eff. 1/23/2012; abrogated and replaced July 1, 2016, eff. 9/12/2016; amended December 13, 2021, eff. 2/14/2022.

Reporter's Notes-2022 Amendment

Rule 16.3(b)(3) is amended, pursuant to the Supreme Court's directive under Administrative Order 49, ¶ 13, that the Civil Rules Advisory Committee "consider whether a permanent change to the rules relating to participation in remote mediation is advisable."

Prior to these amendments, Rule 16.3(b)(3) required parties and counsel to attend a mediation unless they "stipulate otherwise or the court, for good cause, excuses participation or authorizes telephone participation. AO 49, ¶ 13, however, suspended that rule. Paragraph 13 provides that "the judicial emergency" addressed by AO 49 "constitutes 'good cause' authorizing remote participation in mediation, by video or telephone, without a stipulation or further court order."

The present amendments retain the basic structure of Rule 16.3(b) that in-person attendance is the default position, with an option for remote mediation if the parties so stipulate or the court, in its discretion, so orders or excuses a party. In the amendment the court's discretion is substituted for "good cause" as the standard by which the court may determine whether to order remote mediation or excuse a party from it. For example, in a financial disparity between parties, where the disadvantaged party is out of state, absence may not be sufficient to meet a good cause standard, but it may be a fact that could convince a judge to use his/her discretion regarding remote mediation if it made sense to the court to do so, in striking a balance between the benefits of remote and in-person mediation in the circumstances of a particular case. For examples of the use of "in its discretion" see V.R.C.P. 3(a), 4(j), 23(f) (as it relates to the Supreme Court), 39(b), 55(c) and (d). The "in its discretion" language is also well litigated. This process would make it a bit easier to have remote mediation where the parties do not agree.

To clarify best practice, the present amendments specify that the default requirement of the rule is for "in person" attendance by parties and counsel, and that the alternative, whether by stipulation or court order, is remote attendance by either video or telephone. It should also be noted that the stipulation provided by Rule 16.3 occurs in connection with the pleading process. The parties may informally agree to remote mediation at any time.

Reporter's Notes

Rule 16.3, originally promulgated in 1999, is abrogated and replaced by the present rule, which is intended to conform to present practice. The new rule combines provisions of the former rule with a simpler organization similar in form to recently promulgated V.R.F.P. 18 and recently recommended V.R.P.P. 16.1. Thus, the title of the new rule and references throughout are "Mediation," rather than "Alternative Dispute Resolution," reflecting that preliminary evaluation (former Rule 16.3(d)) and forms ofADR other than mediation are no longer required or governed by the rule.

New Rule 16.3(a) essentially carries forward in simplified form the substance of former Rule 16.3(a). New Rule 16.3(b) incorporates in simplified form many of the provisions of former Rule 16.3(c), omitting detailed provisions for selection of the neutral, scheduling, and the contents and timing of the neutral's report. Paragraph (b)(3) provides that a party may be excused from personal attendance at a mediation by stipulation or court order and that nonparties who have a material interest or others such as experts or spouses whose presence is essential may be invited to attend by agreement. New Rule 16.3(c) is derived from former Rule 16.3(e), eliminating provisions for income guidelines for state payment of part of the neutral's fees and administrative orders listing preliminary evaluators and other neutrals available for referral.

New Rule 16.3(d)-(f) carry forward with little modification the provisions of former Rule 16.3(f)-(h).