BANKRUPTCY RULE 7016-1

ALTERNATIVE DISPUTE RESOLUTION

(A) AUTHORIZATION

(1) The district court authorizes the use of Alternative Dispute Resolution in civil cases, including adversary proceedings in bankruptcy, pursuant to 28 U.S.C. Section 651. See Rule 16.2, D.N.D. Civ. L.R.

(2) The primary form of ADR offered by the district court and bankruptcy court is mediation in the form of court-sponsored settlement conferences held by judicial officers. The court will not offer arbitration as a court-sponsored ADR process, but in appropriate cases, with the consent of the parties, the court will facilitate other forms of ADR, such as early neutral evaluation. The court also encourages, but does not require, private ADR as an alternative to court-sponsored ADR.

(B) CONFIDENTIALITY OF MEDIATION PROCEEDINGS

Confidentiality is necessary to the mediation process, and mediations are confidential under these rules and to the fullest extent permissible under otherwise applicable law. Unless all parties to the mediation expressly waive confidentiality, the provisions of this local rule apply to mediations occurring in cases, contested matters and adversary proceedings pending before the court. These provisions also apply to mediations ordered or referred by the court. Except as may be otherwise ordered by the court, the following provisions apply to any mediation under these rules:

(1) To the fullest extent applicable, Rule 408 of the Federal Rules of Evidence (and any applicable federal or state statute, rule, common law or judicial precedent relating to the protection of settlement communications) applies to the mediation and any communications with the mediator related to the mediation. In addition to the limitations on admissibility of evidence under Rule 408, no person may rely on or introduce as evidence in connection with any arbitral, judicial or other proceeding, including any hearing held by this court in connection with the referred matter, whether oral or written;

(a) views expressed or suggestions made by a party regarding a possible settlement of the dispute, including whether another party had or had not indicated a willingness to accept a proposal for settlement;

(b) proposals made or views expressed by the mediator; or

(2) Subject to subparagraph (4), the mediator and the participants in mediation are prohibited from divulging, outside of the mediation, any oral or written information disclosed by the parties or witnesses to or in the presence of the mediator, or between the parties during any mediation.

(3) Subject to subparagraph (4), any submission of information or documents to the mediator prepared by or on behalf of any participant in mediation and intended to be confidential is not subject to disclosure, even if the submission is shared with other mediation participants.

(4) Information, facts or documents otherwise discoverable or admissible in evidence do not become exempt from discovery or inadmissible merely by being disclosed or otherwise used in the mediation or in any submission to the mediator.

(5) The mediator may not be compelled to disclose to the court or to any person outside the mediation any records, reports, summaries, notes, communications, submissions, recommendations, or other documents received or prepared by or for the mediator while serving in a mediator capacity. The mediator may not testify or be compelled to testify regarding the mediation in connection with any arbitral, judicial or other proceeding. The mediator is not a necessary party in any proceeding relating to the mediation. Nothing contained in this paragraph prevents the mediator from reporting the status, but not the substance, of the mediation effort to the court in writing.

(6) For the avoidance of doubt, nothing in this local rule is intended to or will modify any rights or obligations in connection with confidential information or information potentially subject to protection under section 107.

(7) Notwithstanding Rule 502 of the Federal Rules of Evidence, a party's disclosure of privileged information to the mediator does not waive or otherwise adversely affect the privileged nature of the information.