Rule 101. Conduct of mediation proceedings.

(a) Selection of mediator. The mediator shall be selected as provided in Code of Judicial Administration Rule 4-510.05(4).

(b) Pre-mediation conference. Within 10 days following selection, and after consultation with the participating parties or their counsel, the mediator shall conduct a pre-mediation conference and schedule the place, date and time of the mediation conference. The pre-mediation conference may be conducted by telephone, with the parties individually, or together. During the pre-mediation conference, the mediator shall inform the parties of their right to withdraw from the mediation process before a final settlement agreement is signed. The mediation conference should be held within 45 days of the pre-mediation conference. The parties may agree to conduct discovery pursuant to paragraph (f). The mediator may request that the parties exchange and/or submit a disclosure statement prior to the mediation conference.

(c) Mediation conference. The mediation conference shall commence at the place, date, and time agreed upon by the mediator and the parties. All parties shall be present, shall be prepared to discuss, and shall have the authority to fully settle, all relevant issues in the case. The mediator shall conduct the mediation conference and determine the length and timing of sessions and recesses, and the order and manner of presentation of the issues. The mediation conference should proceed in a fashion that furthers the goals of the mediation process, preserves confidentiality, and encourages candor on the part of participating parties. The mediator should serve as a neutral facilitator, assisting the parties in defining and narrowing the issues and encouraging each party to examine the dispute from various perspectives, without undertaking to decide any issue, make findings of fact, or impose any agreement.

(d) Separate consultation with parties during the mediation conference. During the mediation conference, the mediator may meet or consult separately with one or more participating parties, or may divide the conference into groups of fewer than all the parties. Information disclosed to the mediator on a confidential basis during separate consultation shall not be disclosed to other parties without the disclosing party's consent.

(e) Settlement. In the event that a settlement to all issues is reached during the mediation conference, the participating parties or the mediator shall prepare, and the parties shall execute, a written settlement agreement and promptly file with the clerk of the court any documents appropriate for resolution of the action. In the event that a resolution of less than all of the issues is reached, the parties shall prepare and execute a stipulation concerning those issues that were resolved and identifying those issues that remain in dispute. Upon filing of the stipulation with the clerk, the case shall be withdrawn from the ADR program.

(f) Discovery. Discovery may proceed during the pendency of the mediation proceedings, except as stipulated by the parties. Subpoenas for the production of evidence by nonparties may be issued, served and enforced by the court as provided by the Utah Rules of Civil Procedure.

(g) Termination. If the mediator determines that the parties are unable to participate meaningfully in the process or that a reasonable agreement is unlikely to be achieved, the mediator may suspend or terminate the mediation process without explanation. The parties may terminate the proceedings at any time.

(h) Absent parties. Upon written recommendation by the mediator or motion by any party, the court may order absent parties to show cause why they failed to attend the mediation conference and, if appropriate, why sanctions should not be imposed.

(i) Change to arbitration. At any time prior to the conclusion of the mediation proceedings, the parties may agree to submit the matter to arbitration. Written notice signed by all parties and counsel of such agreement shall be sent to the Director. Selection of an arbitrator shall be governed by Code of Judicial Administration Rule 4-510(11). The parties may by agreement request that the mediator serve as an arbitrator.

(j) No interlocutory appeal. may be taken from an order granting or denying a motion to refer a civil action pending on January 1, 1995 to the ADR program.