Rule 66.Duties to Consider and Attempt Settlement by Alternative Dispute Resolution (“ADR”)

Rule 66 opens Part VIII by naming what is available and imposing two duties.

The processes

• Arbitration -- neutrals retained by the parties who render a decision under the Uniform or Revised Uniform Arbitration Act and Rule 67.2.
• Family law master -- a court appointee who receives evidence and reports findings of fact and conclusions of law under Rule 72.
• Mediation -- a voluntary and confidential process under Rule 67.3 or Rule 68.
• Open negotiation -- non-confidential negotiation before a neutral negotiator who reports disputed issues to the court if they are not resolved. It is the one process on this list that is deliberately not private.
• Parenting coordinator -- an appointee who recommends how to implement, clarify, modify and enforce legal decision-making and parenting time orders under Rule 74.
• Settlement conference -- a confidential process before a neutral judge, commissioner or judge pro tempore under Rule 67.4.

The list is not closed. The court may create, administer, approve or authorize other processes, including for people who have not yet filed anything.

The duty to consider

Not later than 90 days after a respondent's appearance, the parties must consider the possibilities for prompt resolution and whether they would benefit from an ADR process -- and if so, which type, which provider, and when to schedule it. The obligation is to think about it on a clock, not merely to remain open to the idea.

The duty to attempt settlement

Attorneys of record and self-represented parties are jointly responsible for having a good faith discussion about settlement or agreeing on an ADR process, and the court may impose Rule 71 sanctions for failing to participate in good faith. The responsibility is shared, so neither side can satisfy it by waiting for the other.

The domestic violence exception

Self-represented parties are not required to personally meet or contact each other under this rule in violation of a current no-contact order, or where there is a history of domestic violence between them. Note that this exception is worded more broadly than the paired test in Rules 9(c)(2) and 34(d) -- here the history of domestic violence alone suffices for a self-represented party.

Where the parties have not agreed on a process, the court may direct them to discuss with a court-appointed ADR specialist, in person or by telephone, whether ADR is appropriate and which type might help.