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Rule 9072-7

Appointment of Mediator

(a)   Selection and Appointment of Mediator.

(1)   Selection by Parties.  Unless otherwise ordered by the court, within seven days following the receipt of notice of assignment of a matter to the ADR Program, the parties to the matter shall select a mediator and an alternate mediator, and shall present the court with a proposed order of appointment.  If such selection is not from the Panel, the parties shall submit with the proposed order of appointment a stipulation by the parties that the proposed mediator is not on the Panel but is otherwise qualified under Local Rule 9072-6 to mediate the matter.  If the court, in its sole discretion approves the parties' selection, immediately after entry of the order of appointment, the court shall notify the parties, the mediator, and the alternative mediator of the appointment.

(2)   Selection/Appointment by Court.  If the parties cannot agree upon a mediator within 14 days following the receipt of notice of assignment of a matter to the ADR Program, the parties shall notify the court; thereupon, the court shall appoint a mediator and an alternative mediator from the Panel, and shall notify in writing the parties, the mediator, and the alternative mediator of such appointment.

(b)   Inability of Mediator to Serve.  If the mediator is unable to serve, the mediator shall, within seven days after receipt of notice of the appointment, file and serve on all parties to the matter, and on the alternate mediator a notice of inability to accept the appointment.  If the alternate mediator does not file and serve on all parties to the mediation a notice of inability to accept the appointment within seven days after receipt of the original mediator's notice of inability to accept the appointment, the alternate mediator shall then become the mediator.  If neither the mediator nor the alternate mediator can serve, the court shall appoint another mediator and alternative mediator.

(c)  Disqualification of Mediator. 

(1)   Disqualifying Events.  Any person selected as a mediator may be disqualified for bias or prejudice in the same manner that a judge may be disqualified under 28 U.S.C. § 455.  Any person selected as a mediator shall be disqualified in any matter where 28 U.S.C. § 455  would require disqualification if that person were a judge.

(2)   Inquiry by Mediator; Disclosure.  Promptly after receiving notice of appointment, the mediator shall make inquiry sufficient to determine whether there is a basis for disqualification underLocal Rule 9072-7(c)(1).  The inquiry shall include, but not be limited to, a search for conflicts of interest in the manner prescribed by the applicable rules of professional conduct for attorney mediators, and by the applicable rules pertaining to the mediator's profession for non-attorney mediators.  Within seven days after receiving notice of appointment, the mediator shall file with the court and serve on the parties to the mediation either (a) a statement that there is no basis for disqualification under  Local Rule 9072-7(c)(1) and that the mediator has no actual or potential conflict of interest or (b) a notice of withdrawal.

(3)   Objection Based on Conflict of Interest.  A party to the mediation who believes that the assigned mediator and/or the alternate mediator has a conflict of interest, promptly shall bring the issue to the attention of the mediator and/or the alternate mediator, as applicable, and to the other parties to the mediation.  If the mediator does not voluntarily withdraw, the issue shall be brought to the court's attention by the mediator or any of the parties to the mediation.  Any pleading shall be filed with the court, and copies of the pleading shall be mailed to all of the parties to the mediation, their counsel of record, if any, the mediator, the alternative mediator, and the ADR Program Administrator.  The court shall take such action as the court deems necessary or appropriate to resolve the alleged conflict of interest and to avoid the appearance of impropriety.

(d)   Mediator's Liability.  There shall be no liability on the part of, and no cause of action shall arise against, any person who is appointed as a mediator on account of any act or omission in the course and scope of such person's duties as a mediator.

(e)   Compensation.

(1)   Compensated Mediation.  Mediators who meet the requirements of  Local Rule 9072-6 shall be paid fees and expenses on such terms as the mediator and the parties to the mediation may agree or as the court otherwise may direct.  The parties to the mediation shall share equally all ADR fees and expenses unless the parties to the mediation agree otherwise.  The court may, in the interest of justice, determine a different allocation or a different fee structure.  ADR fees and expenses are subject to prior court approval if the bankruptcy estate is to be charged with any portion.  Notwithstanding the foregoing, the mediator's fee, whether agreed to by the parties or fixed by the court, may not be contingent or otherwise based on the result or outcome of the ADR process.  The court shall maintain a list of all mediators who are qualified to be compensated mediators.

(2)   Uncompensated Mediation.  The court shall maintain a list of mediators who have agreed to serve as mediators without compensation in those cases where one or more of the parties can not afford to pay for mediation.  Any attorney or panel trustee willing to serve as an uncompensated mediator shall file then Application Form pursuant to  Local Rule 9072-6 above and state that they are willing to serve as an uncompensated mediator.  To be approved as a uncompensated mediator it is not required that the applicant have completed mediation training.

Committee Notes 2009: Time deadlines have been amended to be consistent with amendments to the Federal Rules of Bankruptcy Procedure, effective December 1, 2009.

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