Vermont Bar Association

59th Mid-Year Meeting

Mediation in Vermont

March 31st & April 1st, 2016

Hilton Burlington

Burlington, VT

Faculty:

Emily Gould, Esq.

Althea Lloyd, Esq.

Phoebe Barash, MAed

Art O’Dea, Esq.

Julio Thompson, Esq.

Laura Zeisel, Esq.

Mary Kehoe, Esq.

Aileen Lachs, Esq.

Karen Richards, Esq.

Mark Langan, Esq.

Julie Hoyt, Esq.

Jeremy Zeliger, Esq.

Steve Monahan, Esq.

Presenter Contact Information for VBA Panel - April 1, 2016

Mediation in Vermont

8:30 - 10:30 a.m. @ Hilton Hotel, Burlington, VT.

MEDIATION

PROGRAM NAME

PRESENTER EMAIL PHONE NUMBER

(802)

Civil Division and Rule 16.3

Emily Gould ejgould@emilyjgould.com 223-1735

Civil Rights Julio Thompson

julio.thompson@vermont.gov 828-5519

Vermont Superior Court Environmental Division Mediation

Laura Zeisel

laura.zeisel@vermont.gov 479-5188

Early Neutral Evaluation

Mary Kehoe mary@kehoelawyer.com 863-8363

Foreclosure and Bankruptcy

Aileen Lachs aileen@mickdunn.com 658-6951

Human Rights Karen Richards Karen.Richards@vermont.gov 828-2482

Probate Mediation Mark Langan mlangan@DINSE.COM 864-5751

Special Education

Emily Gould

contact - Clare O’Shaughnessy Vt. Agency of Education

clare.oshaughnessy@vermont.gov

479-1761

Vermont Agricultural Mediation Program

(VTAMP)

Julie Hoyt

julieh@emcenter.org

583-1100 x 102

Vermont Superior Court Family

Mediation (VSCFMP)

Jeremy Zeliger

Jeremy.zeliger@vermont.gov

828-4913

VSCFMP: Mediation Thea Lloyd tlloyd@sover.net 257-8519

VSCFMP: Parent Coordination

Phoebe Barash phoebe@barashmediation.com 453-7815

Workers Compensation

Steve Monahan

stephen.monahan@vermont.gov 828-2138

VBA DR Section Chair

Emily Gould ejgould@emilyjgould.com 223-1735

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Emily Gould, Esq.

A former criminal prosecutor and general counsel, Emily Gould is a mediator, coach and trainer in dispute

resolution and leadership development. In her current private practice, Emily mediates a wide variety of

disputes, including those involving commercial and non- profit organizations, employment, agriculture,

education, families and public policy. As a leadership development consultant Emily works with govern-

ment entities, NGO’s and social entrepreneurs with an emphasis on values - based approaches to achieving

best outcomes. Emily has chaired the Dispute Resolution Committee of the Vermont Bar Association for a

decade and is the author of The Empathy Debate: The role of Empathy in Law, Mediation, and the New

Professionalism in the Vermont Bar Journal (Fall, 2010).

AILEEN L. LACHS, ESQ.

Mickenberg, Dunn, Lachs & Smith, PLC

29 Pine Street, P.O. Box 406

Burlington, VT 05402-0406

(802) 658-6951

aileen@mickdunn.com

http://www.mickdunn.com/

Aileen L. Lachs has been an attorney at Mickenberg, Dunn, Lachs & Smith, PLC and licensed to practice

law in the State of Vermont since 1994. She received her JD from Northeastern University School of

Law in Boston, and her BA from Williams College in Williamstown, Massachusetts.

Foreclosure Mediation is a primary focus of Ms. Lachs’ legal practice. Having served as a foreclosure

mediator since the Vermont Foreclosure Mediation Statute went into effect in July 2010, she has handled

hundreds of mediations throughout the State of Vermont. Ms. Lachs served on the study committee es-

tablished by the Vermont Bar Association and the Vermont Bankers Association in 2012 to address con-

cerns about the foreclosure mediation program and has presented at Vermont Bar Association legal edu-

cation seminars focused on best practices in foreclosure mediations.

“My work as a mediator has been extremely rewarding. In addition to helping facilitate what is often a

challenging and stressful process, I have witnessed many homeowners save their homes as a result of the

mediation process.”

Ms. Lachs offers mediation services in other substantive areas, including family law. Ms. Lachs has been

a proponent of alternative dispute resolution for many years. She served on the board of a not-for-profit

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mediation center in Burlington, Vermont, in the 1980’s and has assisted with small claims court media-

tions. She completed mediation training programs at Woodbury College and Champlain College in 2010

and 2015, respectively, and has presented at a number of alternative dispute resolution Continuing Legal

Education Seminars in Vermont.

Ms. Lachs has more than twenty years of experience representing clients in a wide range of family law

matters. Ms. Lachs’ litigation practice has also included personal injury (with a particular emphasis on

bicycle and pedestrian collisions), employment and contract/quasi contract cases. Ms. Lachs also has per-

formed a wide variety of transactional work on behalf of the law firm’s organizational and individual cli-

ents, including estate planning, residential and commercial real estate and contracts.

Ms. Lachs is fluent in French, speaks conversational Spanish and is learning Mandarin Chinese.

Foreclosure Mediations in Vermont

The back-drop for Vermont’s Foreclosure Mediation Program is the subprime mortgage and finan-

cial/economic crisis of 2007-2009. In addition to the deep economic recession, loss of millions of jobs,

severe drop in the stock market and collapse of several major financial institutions, the crisis resulted in

wide spread foreclosures across the nation. According to one report, there were approximately 3.9 mil-

lion completed foreclosures in the United States during the period September 2008 to September 2012.

This is approximately 83,000 per month, as compared with an average of 21,000 per month between 2000

and 2006. See CoreLogic October 31, 2012 PRNewswire: CoreLogic® Reports 57,000 Completed Fore-

closures in September at http://multivu.prnewswire.com/mnr/corelogic/56990/. According to another re-

port, the number of foreclosures per residential mortgage increased over 436.8 percent from 1980 to 2007.

Foreclosure Prevention Counseling: Preserving the American Dream, National Consumer Law Center (2nd

Ed 2009), pp 5-6.

The Vermont Foreclosure Mediation Program began with the enactment of the Vermont Foreclosure Me-

diation Statute (codified at 12 V.S.A. §4631 et seq.), which took effect on July 1, 2010. The statute was

enacted in an effort to ensure that homeowners facing foreclosure were being assessed for eligibility in a

variety of foreclosure avoidance programs, principally loan modifications through the federal Home Af-

fordable Modification Program (HAMP). HAMP was the cornerstone of the federal government’s Mak-

ing Home Affordable (MHA) program launched in February 2009 to address the mortgage crisis. More

information about MHA can be found at www.MakingHomeAffordable.gov.

The foreclosure mediation statute was later amended, effective December 1, 2013, to expand its reach to

all government loss mitigation programs (when HAMP was scheduled to sunset; it has since been ex-

tended through 12/31/16). In addition, changes were made to the mediation time-frame, the mediation

report, eligibility and opt-out provisions, in-person mediation requirements, loss mitigation inputs and

calculation requirements, and the mediator selection process. The amended statute can be found at

http://legislature.vermont.gov/statutes/section/12/163/04631 et seq.

Mediations are initiated by an Order of Referral to Mediation, issued by the Vermont Superior Court in

which the foreclosure action is pending. The Order includes standardized language about the mediation

process and time-line and refers the matter to the appointed mediator. The time allotted to complete the

mediation process is 120 days, but this time frame can be extended with Court approval. The mediation

program is available to all homeowners facing foreclosure in Vermont whose dwelling is four units or less

and occupied as a principal residence by the owner, so long as there is at least one applicable government

loss mitigation program and the narrowly delineated opt-out provisions of the statute do not apply.

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A significant component of the mediation process is the gathering and review of the homeowner’s finan-

cial documentation and information. The mediation itself is focused on determining whether the bor-

rower’s financial and other circumstances meet the eligibility requirements of the applicable government

loss mitigation programs. The mediation must take place in person in the county in which the foreclosure

action is brought, unless all parties agree otherwise in writing.

Under the current statute, mediators are selected through a randomized process coordinated by the Ver-

mont Bar Association. There are currently 35 mediators listed on the VBA website. For the list of medi-

ators and their biographical information, go to https://www.vtbar.org/UserFiles/files/Foreclosure%20Me-

diators%20PPT%20for%20website.pdf. To connect to the foreclosure mediation section of the VBA

website go to

https://www.vtbar.org/FOR%20THE%20PUBLIC/Foreclosure%20Mediation%20Resources/How%20to

%20Choose%20a%20Foreclosure%20Mediator.aspx. Mediators must be licensed to practice law in the

State of Vermont and must complete certain VBA approved continuing legal education training courses.

The lender/servicer is responsible for paying the mediator’s fee. However, the company can recoup the

fees from homeowners in certain circumstances, for example, if a sale of the property results in a surplus.

The role of the mediator is somewhat different in foreclosure mediations (e.g., as compared to Rule 16.3

mediations). In addition to serving as a facilitator between the lender/servicer and the homeowner (and/or

their respective counsel), the mediator has oversight responsibilities to ensure that the statute is being fol-

lowed and the homeowner is being reviewed for all applicable government loss mitigation programs. In

keeping with these oversight responsibilities, the mediator informs the Court of the status of the media-

tion and files a fairly detailed report at the end of the mediation process. The mediation report indicates,

among other things, the outcome of the mediation and whether the parties participated in good faith. The

mediation reports are also sent to the Attorney General’s Office, which is gathering statistics concerning

the effectiveness of the foreclosure mediation program. To link to the Attorney General’s Office website

regarding foreclosure mediations go to http://ago.vermont.gov/focus/consumer-info/money-and-

credit/foreclosures.php.

According to the Office of the Attorney General’s recently released informal report for mediations which

terminated in 2015, approximately 67% of cases in which both parties participated resulted in a settlement

(with the vast majority of those homeowners being able to retain their homes). This is roughly consistent

with my own record keeping for cases which terminated prior to November 26, 2012. As of that date,

89% of cases in which both parties participated fully in the process settled and 78% resulted in loan modi-

fications.

Bankruptcy Court Mortgage Mediations in Vermont

The United States Bankruptcy Court for the District of Vermont established a mortgage mediation pro-

gram on January 1, 2012. The program was incorporated into the Court’s Local Rules as Vermont Local

Bankruptcy Rule 4001-7. The program was modified on May 1, 2013, and February 2, 2015, to increase

efficiency, effectiveness and transparency. See Standing Order # 15-02 at

http://www.vtb.uscourts.gov/sites/vtb/files/general-ordes/SO%2015-02%20-%20MM%20-

%202.2.15%20FINAL%20with%20attachments.pdf.

Mortgage mediations are available for cases filed under Chapter 7, 11, 12 or 13, where the subject prop-

erty has four units or less and is the debtor’s primary residence and either the creditor consents or the

Court finds mediation is not prohibited by one of the applicable restrictions (for example, a previously

completed foreclosure mediation in Vermont Superior Court).

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There are many parallels between the foreclosure mediation and Bankruptcy Court mortgage mediation

processes. Here also, all parties are required to participate in good faith and the creditor must review the

borrower for all available foreclosure prevention tools. The Bankruptcy Court also sets specific time

frames for the mediation process, including completion of mediation within 120 days. The mediator also

has oversight and reporting responsibilities in this context, and is required to file a report at the termina-

tion of the mediation process.

There are, however, some differences between the two mediation programs. The Bankruptcy Court pro-

cess has greater uniformity and is more form-driven. For a link to the forms associated with this program,

go to http://www.vtb.uscourts.gov/local-bankruptcy-rules-supplement-appendices-forms-2012. This uni-

formity extends, for example, to the financial exchange, where all debtors are required to provide the

same financial documentation and information (which is not the case in foreclosure mediations). The

Bankruptcy Court is also more involved in this aspect of the process than is the Superior Court, with both

parties and the mediator reporting to the Bankruptcy Court on the completion (or lack thereof) of the fi-

nancial exchange.

Another difference between the two mediation programs is the mediator selection process. In Bankruptcy

Court mortgage mediations, the parties choose their mediators from the Court approved panel – currently

nine in number. To be eligible for the Bankruptcy Court mortgage mediation panel, a mediator must be

licensed to practice law in the State of Vermont, have completed certain continuing legal education re-

quirements regarding mortgage mediations, and have “significant bankruptcy experience.” For a list of

the members of the current mediator panel go to http://www.vtb.uscourts.gov/sites/vtb/files/Media-

tor%20list.pdf.

The payment of mediator fees also differs – there being a flat fee of $900 per mediation shared equally by

the parties, unless otherwise determined by the Bankruptcy Court. Mediators in Bankruptcy Court media-

tions also have the discretion to determine whether the mediation takes place in person or via telephone or

video conferencing. See http://www.vtb.uscourts.gov/sites/vtb/files/general-ordes/SO%2015-02%20-

%20MM%20-%202.2.15%20FINAL%20with%20attachments.pdf.

Many of the differences between the foreclosure mediation and bankruptcy mortgage mediation programs

result from the fact that all parties are represented in Bankruptcy Court while most foreclosure homeown-

ers are pro se.

Vermont Superior Court Family Mediation Program- Mediation and Parent Coordination

(VSCFMP)

Jeremy Zeliger serves as Senior Programs Manager for the Office of the State Court Administrator, Divi-

sion of Planning and Court Services. He administers the Vermont Superior Court Family Mediation Pro-

gram, the Parent Coordination Program, and the Court Interpreters Program. Jeremy also supervises the

administration of the treatment court dockets, the program for guardians ad litem, and the Juvenile Court

Improvement Program.

Prior to joining the Vermont Judiciary in 2015, Jeremy served as staff attorney with the Vermont Agency

of Human Services and the Department for Children and Families. Before moving to Vermont in 2014,

Jeremy was employed as a case administrator with the Financial Industry Regulatory Authority (FINRA)

in its dispute resolution program, and he served as assistant deputy counsel with the New York State Judi-

cial Institute and with the New York State Unified Court System, Office of Alternative Dispute Resolu-

tion and Court Improvement Programs.

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Jeremy received his JD from The Dickinson School of Law and his BA from the State University of New

York at Albany. He is licensed to practice law in Massachusetts, New York, and Vermont.

Jeremy lives in Williston, Vermont.

Phoebe Barash, MA Ed.

Phoebe Barash is a mediator working with families, DCF, groups, schools and nonprofit organizations. In

2001, after leaving her longtime position as an elementary school administrator, she began her own busi-

ness in mediation and conflict management. She has worked over the years with the state mediation pro-

grams in Special Education, Civil Rights and since 2001 has been contracted with the Vermont Superior

Court Family Mediation program as a mediator and Parent Coordinator.

Phoebe has been an adjunct faculty member at Woodbury College, Middlebury College, UVM, Cham-

plain College and a guest lecturer at the Woodruff Institute at Castleton State College. She has a certifi-

cate in mediation and conflict management through the former Woodbury College in Vermont. She re-

ceived her Bachelor of Science in Education from Wheelock College in 1972 and her Masters of Arts in

Education from Western Carolina University in 1980. She is a member of the Association of Family and

Conciliatory Courts (AFCC), the Southern Poverty Law Center, Bristol CORE, the Addison County

Chamber of Commerce and the VBA as a non- attorney member.

Althea (Thea) Lloyd, Esq.

Thea obtained a B.A from Boston University before attending Northeastern Law School. She practiced

law as deputy general counsel for the Departments of Social Services and Public Health in Boston during

the 1980’s and taught a Women and the Law summer school course at B.U. for several years.

After her family moved to northern Vermont in 1988 she was an associate at Sargent & White from 1989

– 1994, with a focus on family law. Upon moving to Brattleboro in 1994 she practiced law with Michael

Hertz and in 2001 they joined as partners in Hertz & Lloyd. Thea’s primary area of practice has been in

family law and mediation, including serving as an acting magistrate for many years. During her 20 years

in private practice she also was a guardian ad litem and parent coordinator working with high conflict

families.

In 2010 Thea joined the Vermont judiciary as a family court case manager and guardian ad litem supervi-

sor serving on the Family Division and GAL Oversight Committees. In January 2014 she was hired to be

the program coordinator of Windham County’s newly-established Integrated Domestic Violence Docket

(IDVD).

In January 2016 Thea resumed her private mediation and parent coordination practice in southern Ver-

mont. She can be contacted at tlloyd@sover.net or 802-257-8519.

Thea teaches yoga and, for the past 15 years, has led a group on a winter yoga vacation to a beach in

Mexico.

VSCFMP links:

https://www.vermontjudiciary.org/GTC/Family/mediation.aspx

https://www.vermontjudiciary.org/GTC/Family/parentcoordination.aspx

Vermont Rules of Family Procedure - Rule 4:

6

(s) Parent Coordination.

(1) Appointment of Parent Coordinator. -- In an action under this rule in which parental rights and re-

sponsibilities have been adjudicated and determination, modification or enforcement of parent-child con-

tact is a substantial issue, the court, at the request of a party or on its own motion, may appoint a parent

coordinator if to do so will serve the best interests of the children and one or more of the following condi-

tions is impeding the resolution of parent-child contact issues:

(A) A high level of conflict between the parents;

(B) Domestic abuse in the relationship;

(C) Substance abuse on the part of either or both parties; or

(D) Any other condition that in the opinion of the court significantly impedes the resolution of parent-

child contact issues.

(2) Order of Referral-- If the court determines that parent coordination may be in the best interests of

the children pursuant to paragraph (1) of this subdivision, the court may issue an order of referral to par-

ent coordination that requires the parties to meet with a designated parent coordinator for an initial intake

and informational meeting. The order will:

(A) Designate a specific individual qualified as provided in paragraph (9) of this subdivision to serve

as parent coordinator for the purpose of resolving issues related to parent-child contact in accordance with

protocols established by administrative order of the Supreme Court;

(B) Direct each parent to contact the parent coordinator for the purpose of setting up an initial intake

and informational meeting.

(C) Delineate the scope of parent coordinator's recommendations to include one or more of the fol-

lowing: Modification of the conditions of parent-child contact designed to improve compliance (e.g.,

communication between parents, pick-up and drop-off protocols, supervision requirements); minor sched-

ule changes consistent with the percentage of time the child spends with each parent under the current

parent-child contact order; modification of schedule and percentage of time spent with each parent. In

post-judgment cases, the judge shall not order recommendations that include modifications in the percent-

age of time spent with each parent unless a party has filed a motion to modify parent-child contact and the

judge has determined that the moving party has made a prima facie case for a real, substantial, and unan-

ticipated change of circumstances.

(3) Intake and Informational Meeting-- At the intake and informational meeting, the parent coordinator

shall interview each parent individually as required under subparagraph (5)(C) of this subdivision. If the

parent coordinator determines that the case is appropriate for parent coordination and the parties agree to

engage in the parent coordination process, the parent coordinator shall submit to the court a signed parent

coordination agreement and a proposed appointment order. If the parent coordinator determines that the

case is not appropriate for parent coordination or the parties do not agree to engage in the process or fail

to attend the intake meeting, the parent coordinator shall so inform the court.

(4) Parent Coordination Order. -- Upon the filing of a stipulation and proposed order, the court shall is-

sue a parent coordination order. The order will:

(A) Designate a specific individual qualified as provided in paragraph (9) of this subdivision to serve

as parent coordinator for the purpose of resolving issues related to parent-child contact in accordance with

protocols established by administrative order of the Supreme Court;

7

(B) Delineate the scope of the parent coordinator's recommendations to include one or more of the

following: Modification of the conditions of parent-child contact designed to improve compliance (e.g.,

communication between parents, pick-up and drop-off protocols, supervision requirements); minor sched-

ule changes consistent with the percentage of time the child spends with each parent under the current

parent-child contact order; modification of schedule and percentage of time spent with each parent. In

post-judgment cases, the judge shall not order recommendations that include modifications in the percent-

age of time spent with each parent unless a party has filed a motion to modify parent-child contact and the

judge has determined that the moving party has made a prima facie case for a real, substantial, and unan-

ticipated change of circumstances.

(C) Direct each parent to contact the parent coordinator for the purpose of setting up further meetings.

(D) Set a date for a status conference ten to twelve weeks from the date of the order or at another mu-

tually agreed-upon time.

(5) Duties of the Parent Coordinator.

(A) The parent coordinator will review the file of the case before the initial intake and informational

meeting with the parties.

(B) The parent coordinator will hold the initial intake and informational meeting with each party sepa-

rately at the courthouse or a facility with comparable security. All subsequent meetings with the parties

will be held separately and at such a facility unless the parties and the parent coordinator agree to hold

joint meetings.

(C) The parent coordinator shall conduct an initial intake and informational meeting as described in

paragraph (3) of this subdivision. At the initial meeting with each party, the parent coordinator shall ex-

plain the purpose and process of parent coordination, inform the parties that information gained by the

parent coordinator in the process will not be confidential, and outline the rights of the parties and the fees

for the service.

(D) If at any time the parent coordinator determines that parent coordination proceedings should be

terminated, the parent coordinator will report that fact to the court, and the matter will be set for a status

conference.

(E) After meeting with both parties, if the parties agree, the parent coordinator shall file a stipulation

signed by both parties authorizing the parent coordinator to obtain confidential information concerning

the children from professionals and others who have worked with the children. If the parties do not agree,

the parent coordinator or a party may request that the court issue an order permitting the parent coordina-

tor to obtain such confidential information.

(F) The parent coordinator may meet with the children, the parties' attorneys, other professionals in-

volved with the children, and family members or others who know the children well.

(G) If the parties agree on a parent-child contact plan, the parent coordinator shall draft a stipulation

that, if signed by each party, shall be filed with the court prior to the date set for the status conference.

(H) If the parties cannot agree on a parent-child contact plan, the parent coordinator shall submit a re-

port to the court, including a narrative summary of the parent coordinator's meetings with the parties and

others and detailed recommendations for a parent-child contact plan. The recommendations of the parent

8

coordinator shall not exceed the scope delineated in the parent coordination order. The report shall be

filed with the court and mailed to the parties at least 14 days prior to the date set for the status conference.

(6) Objections. -- A party who objects to the parent-child contact plan proposed by the parent coordina-

tor shall file written objections with the court within ten days after the mailing to the parties of the parent

coordinator's report and recommendations.

(7) Status Conference. -- At the status conference, if there is a stipulation, the court shall review the

plan, may revise it, and shall issue a final order for parent-child contact based on the stipulated plan and

any revisions. If there is no stipulation, the court shall consider the parent coordinator's report and any ob-

jections. If there are no longer contested issues, the court may issue a final order for parent-child contact

based on the parent coordinator's recommendations and any revisions that the court may make. If there is

not stipulation or report, or contested issues remain, the court shall set the matter for hearing. Pending the

hearing, the court may issue a temporary order for parent-child contact based upon the parent coordina-

tor's recommendations, if any.

(8) Hearing. -- At the hearing, the parent coordinator may be called by either party or the court to tes-

tify, provided that the parent coordinator shall not be permitted to testify to statements made by a party

that would otherwise be inadmissible as an offer of compromise under Rule 408 of the Vermont Rules of

Evidence. Following the hearing, the court shall issue a final parent-child contact order.

(9) Training and Qualifications of Parent Coordinators. -- The Supreme Court will provide by adminis-

trative order for qualifications and training of parent coordinators that will enable them to carry out all of

their responsibilities under this subdivision.

Order Promulgating Amendments to Rules 4(a)(2), 9(a)(2), 9(e), and 15(f)(1)(A) and the Addition of Rule

18 of the Vermont Rules for Family Proceedings

V.R.F.P. Rule 18 (2016)

Rule 18. Mediation

(a) Applicability. -- This rule applies to all actions and proceedings under V.R.F.P. 4(a)-(q) and V.R.F.P.

8.

(b) Order to Mediate. -- Except as provided in subdivision (c), the court, on its own motion or the motion

of a party, at any time after the commencement of an action or proceeding to which this rule applies may

order the parties to participate in mediation of any issue or issues involved in the action or proceeding if

the court determines that the issue or issues could be resolved or clarified through mediation and that the

interest of the parties and the court in a fair, economical, and efficient resolution of the issues would be

served thereby.

(c) Exceptions. -- The court will not order mediation if

(1) at the commencement of the action or proceeding, the parties jointly certify that they have in good

faith voluntarily engaged in mediation with a neutral of their choice regarding the issue or issues that

would have been the subject of the court's order and file with the court a report of the neutral describing

the process employed and the results;

(2) at, or at any time after, the commencement of the action or proceeding, the parties jointly agree on

the record that they will voluntarily participate in mediation regarding the issue or issues that would have

been the subject of the court's order and will file the neutral's report of the process and results by a spe-

cific date;

9

(3) a relief-from-abuse action is pending between the parties, or a final order issued in such an action

between the parties is in effect;

(4) a final order issued in a relief-from-abuse action between the parties is no longer in effect; provided

that the court may order mediation in such a case if the court specifically finds good cause to believe that

mediation would be appropriate in the circumstances; or

(5) the court determines that mediation would not be appropriate due to allegations of abuse, the possi-

bility of undue hardship, or for other reasons.

(d) Conduct of Mediation. -- In a mediation ordered under subdivision (b),

(1) The mediation will be conducted by an individual mediator from the Family Division Mediation

Program's list of mediators, acceptable to the court and the parties. If no mediator on the Mediation Pro-

gram's list who is acceptable to the court and the parties is available to conduct the mediation, the court,

with the agreement of the parties, may designate another mediator with credentials comparable to the

minimum requirements for inclusion on the list.

(2) The mediation will be carried out on a schedule prepared by the parties in consultation with the me-

diator and approved by the court unless the court subsequently, on the request of the parties and mediator,

approves a modification.

(3) The mediator will meet with each party separately prior to the mediation and may meet with any

party separately at any time during the mediation.

(4) The parties are expected to attend all mediation sessions and to mediate in good faith. Attorneys

may attend mediation sessions with their clients.

(5) If at any time the mediator determines that the issues are not suitable for mediation, the mediator

may refer the matter back to the court to be determined in further proceedings as ordered by the court.

(6) The mediator has no authority to make a decision or impose a settlement upon the parties. Any set-

tlement must be voluntary. The parties may reach a partial settlement of the issues and preserve the right

to litigate remaining issues. In the absence of settlement, the parties retain their rights to a resolution of all

issues through litigation.

(7) Any agreement reached by the parties through the mediation process on all or some of the disputed

issues must be reduced to writing, signed by each party and the mediator, and filed with the court by the

parties within ten days after the date of the last signature.

(8) If no settlement is reached by the date specified in the schedule approved or modified under para-

graph (2), the parties must notify the court in writing. The matter will then be determined by the court as

provided in any agreement reached in the mediation and approved by the court or, in the absence of

agreement, as ordered by the court.

(e) Sanctions. -- If a party, lawyer, or other person who is required to participate in 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:

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(1) The court will require the party or lawyer, or both, to pay the reasonable expenses, including attor-

ney fees, of the opposing party, and any fees and expenses of the mediator, incurred by reason of the non-

appearance, unless the court finds that such an award would be unjust in the circumstances.

(2) In addition, the court may upon motion of a party, or upon its own motion, order the parties to sub-

mit 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.

HISTORY: Added July 20, 2015, eff. Sept. 21, 2015.

LAURA ZEISEL is the Case Manager for the Environmental Division of Vermont Superior Court,

where, in addition to her other responsibilities, she coordinates the Division’s mediation program. Prior

to joining the Environmental Division staff, Ms. Zeisel practiced law in New York, where her areas of

concentration were environmental law and land use permitting. Her previous legal experience includes

positions in both the public and private sectors.

Ms. Zeisel received her B.A. from New York University and her J.D., magna cum laude, from the

State University of New York at Buffalo. She is a member of the Vermont and New York bars, and has

served as an Adjunct Professor at Marist College, where she taught courses in environmental law.

Ms. Zeisel is the Town of Plainfield’s representative to the Board of Supervisors of the Central

Vermont Solid Waste Management District, and is also on the Board of Directors of the Blinking Light

Gallery in Plainfield. In her spare time, she loves to knit, and has a small business, Vermont Yarn Shop

at Plainview Farm, which sells yarn made in Vermont and/or produced from Vermont-raised fleece.

www.vermontjudiciary.org Environmental Division Information

COMPARISON

Environmental Division Mediation Statistics

For cases filed during Calendar Years 2005 through 2013

[NOTE: All numbers are as of date of report]

2005 2006 2007 2008 2009 2010 2011 2012 Total cases filed with Court:

270 299 293 304 256 217 181 183

Number which were ANR or NRB AOD’s (filed as consent orders):

46 62 55 58 64 53 31 42

Additional number which were settled after filing,

but before initial pretrial conference:

31 28 21 34 30 13 _29 22

Total “active” disputes:

193 209 217 212 162 151 121 119

Cases where mediation ordered at initial conference:

44 55 68 48 56 34 42 28

Cases where mediation ordered subsequent to initial conference:

15 25 16 27 4 12 _4 5

Total cases w/mediation ordered:

11

59 80 84 75 60 46 46 33

% of “active” disputes for which mediation ordered:

30.57% 38.28% 38.71% 35.38% 37.04% 30.46% 38.02% 27.73%

Resolution of cases where mediation ordered:

Dispute resolved:

39 57 62 57 46 30 33 27

Dispute not resolved; further Environmental Division action required:

20 23 22 18 14 14* 12** 1***

% of cases which were resolved where mediation ordered:

66.11% 71.25 % 73.81% 76.00% 76.67 % 68.18 %” 73.33%” 96.42% Report created 9/5/12 – lz

Report updated 4/3/14 - lz

* Still uncertain (2010): 2

** Still uncertain (2011): 1

*** Still uncertain (2012): 5

"Does not include the two (2) 2010 cases, one (1) 2011 case, and five (5) 2012 cases where the final out-

come of mediation is not yet known.

MEDIATION: Help in Resolving Your Environmental Division Case

1. What is Mediation?

In mediation, parties meet and make their own decision about how to resolve a dispute. Mediation

is a form of alternative dispute resolution (“ADR”). It’s an alternative to court (where the judge makes

the decision). Courts around the country recommend mediation.

A mediator is a person chosen by the parties who was not involved in the dispute before. A medi-

ator does not make a decision. The mediator helps the parties sort through the issues in the dispute. The

mediator also helps the parties discuss possible settlements of the dispute. If the parties agree on a settle-

ment, it’s written down in simple terms; this closes out the court case.

What are the benefits of mediation? What can you expect at your mediation session? How does

it work? Who attends? What do you do? This document answers those questions.

2. The Benefits - Why Go to Mediation?

Mediation is usually faster than court. The parties and the mediator can schedule a mediation

session as soon as possible. In court, parties can wait months for a trial and a decision.

Mediation is more convenient. A mediation session is scheduled for a day and time that’s con-

venient for the parties. The court schedules trials during the workday.

12

Mediation is usually cheaper than going to trial, especially if lawyers or expert witnesses are in-

volved in a case or if there are many court documents have to be filed or reviewed.

In mediation, you can tell your side of the story--in your own words. In a mediation, all the par-

ties tell their side of the story, speak less formally than in court, and express their feelings. But the media-

tor keeps things under control. The mediator focuses on settling the dispute.

A mediation is confidential. In court, documents and hearings are open to the public.

Mediation can help a project applicant, neighbors, and the town resolve other issues related to the

dispute and agree on ways to handle any future problems related to the project.

3. The Process - How Does Mediation Work?

Mediation is less formal that a court proceeding. Mediation gives parties a lot of choice. The

parties choose the mediator. They choose a meeting place, like a conference room in a convenient loca-

tion. They choose a mediation date that’s convenient for all the parties.

The project applicant, the opponents, and a representative of the town usually attend a mediation.

If these parties have attorneys, the attorneys would probably also attend the mediation.

In a typical mediation, the parties first meet all together with the mediator. Each side makes an open-

ing statement with no interruptions. The parties (not just their lawyers) say what they feel about the

issues and how they want to resolve the case.

Usually (but not always), the parties then discuss the issues together. At some point, they may split

up and go to different rooms and the mediator would go back and forth between rooms to talk to dif-

ferent parties (like “shuttle diplomacy”). When a mediator meets alone with just one party without

the other parties, this is called a “caucus.” In a caucus, a party and the mediator talk confidentially.

They discuss a party’s interests and concerns. The mediator and a party will talk about whether or not

what they say in a caucus is told to other parties. The mediator uses the caucus sessions to help the

parties come up with settlement ideas and respond to settlements proposed by another party.

If the parties agree on how to settle the dispute, the mediator helps the parties write a simple settle-

ment agreement. The parties may sign it right there. If the mediation doesn’t settle the case, the En-

vironmental Court will proceed with the case and eventually issue a decision.

4. The Mediator - How Do I Find and Choose a Mediator for My Case?

The Environmental Division of Superior Court maintains a list of mediators who are available to

mediate cases throughout the State. The Mediator Roster is available on the Court’s website. People on

this list are professionally trained to be mediators. They also have been provided with training about En-

vironmental Division procedures. You and the other parties can choose any person on this list to be your

mediator. You and the other parties can also choose any other qualified mediator, as long as that person

is acceptable to all the parties in your dispute.

If you’re not sure about using mediation in your case, or if you have questions about the process,

you can call a person on the Mediator Roster to get more information about mediation, or you can speak

with the Environmental Court Case Manager.

13

The cost of paying for a mediator is often split equally among all the parties in a mediation. How-

ever, which party pays what percentage of the mediator’s fee (or if one party will pay all the cost) can be

discussed and negotiated, either when the parties agree to mediation or in the mediation itself. Different

mediators charge different rates. You can compare rates by calling more than one mediator.

Additionally, each mediator on the Environmental Division Mediator Roster has agreed to take

one “pro bono” case (that is, at no charge), if asked to do so by the court. If you believe your income is

low enough for you to quality for “in forma pauperis” status, you may petition the court to assign a medi-

ator to handle your matter “pro bono”.

5. My Role - How Do I Get Ready for Mediation?

Get all the documents or drawings you think are important to explain your side of the case. The me-

diator may ask you for copies of these and may ask you to send them to other parties.

Have someone at the mediation who can make a final decision for your side.

Think about what points you want the mediator and the other side to understand.

Think about weak points in your case. Think about the strong points of the other side.

Think about reasonable ways to resolve the dispute that would satisfy you.

Realize there may be ways to resolve the dispute you haven’t considered. Be flexible.

Many Environmental Division cases involve neighbors. If your case involves your neighbors, think

about what you’d like your relationship with these neighbors to be like in the future.

MEDIATION CAN HELP YOU AND OTHERS TO RESOLVE THE DISPUTE.

(E- COURT) MEDIATOR REGISTRATION FORM

1. Name:

2. Mailing address:

3. Telephone number:

4. Fax number:

5. E-mail address:

6. Counties where you will mediate cases (check names of one or more counties or “Statewide”):

□ Addison □ Chittenden □ Grand Isle □ Orleans □ Windham

□ Bennington □ Essex □ Lamoille □ Rutland □ Windsor

□ Caledonia □ Franklin □ Orange □ Washington □ Statewide

7. Mediation credentials (describe): [Please keep in mind that, to be placed on the Environmental Divi-

sion’s roster of mediators, you must have completed: 1) mediation training (28 hour basic program with

role playing) and 30 hours actual mediation experience as a third-party neutral; OR 2) 100 hours actual

mediation experience as a third-party neutral. Time spent in mediation as an advocate for one of the par-

14

ties, or as a non-mediator participant, does not “count” towards the experience requirement. All creden-

tials will be reviewed by the Advisory Committee. Please also note that, effective 2/1/2006, the Advi-

sory Committee has requested that applicants furnish a log briefly documenting how the experience

requirement has been met.]

MARK A. LANGAN

Mark A. Langan is a tax attorney at Dinse in Burlington. Mr. Langan is the current chair of the Probate

and Trust Section of the Vermont Bar Association, member of the Probate Rules Committee, state

chair of the American College of Trust and Estate Counsel (ACTEC), and editor of A Practical Guide to

Estate Planning in Vermont. Mr. Langan is a former chair of the joint committee that drafted the Uniform

Trust Code and former chair of the Tax Section of the New Hampshire Bar Association.

PROPOSED

STATE OF VERMONT

VERMONT SUPREME COURT

___________ TERM, 2015

Order Promulgating Addition of Rule 16.1 to the Vermont

Rules of Probate Procedure

Pursuant to the Vermont Constitution, Chapter II, Section 37, and 12 V.S.A. § 1, it is hereby or-

dered:

1. That Rule 16.1 of the Vermont Rules of Probate Procedure be added to read as follows:

RULE 16.1. MEDIATION

(a) Applicability. This rule applies to all actions and proceedings in the Probate Division of the

Superior Court, with any limitations stated in Rule 81.

(b) Order to Mediate. Except as provided in subdivision (c), the court, on its own motion or the

motion of a party, at any time after the commencement of an action or proceeding to which this rule ap-

plies, may order the parties to participate in mediation of any issue or issues involved in the action or pro-

ceeding if the court determines that the issue or issues could be resolved or clarified through mediation

and that the interest of the parties and the court in a fair, economical, and efficient resolution of the issues

would be served thereby. The court shall have the discretion to establish the allocation of payment for the

fees and expenses of mediation.

(c) Exceptions. The court will not order mediation if

(1) at the commencement of the action or proceedings, the parties jointly certify that

they have in good faith voluntarily engaged in mediation with a neutral of their choice regarding

the issue or issues that would have been the subject of the court’s order;

(2) at, or at any time after, the commencement of the action or proceeding, the par-

ties jointly agree on the record that they will voluntarily participate in mediation regarding the

issue or issues that would have been the subject of the court’s order; or

(3) the court determines that mediation would not be appropriate due to the possibil-

ity of undue hardship, or for other reasons.

(d) Conduct of Mediation. In a mediation ordered under subdivision (b),

15

(1) The mediation will be conducted by an individual mediator acceptable to the

court and the parties. If no mediator who is acceptable to the court and the parties is available to

conduct the mediation, the court, may designate another mediator.

(2) The mediation will be carried out on a schedule prepared by the parties in consul-

tation with the mediator and approved by the court unless the court subsequently, on the request

of the parties and mediator, approve a modification.

(3) The mediator may meet with each party separately prior to the mediation and

may meet with any party separately at any time during the mediation.

(4) The parties are expected to attend all mediation sessions and to mediate in good

faith. Attorneys may attend mediation session with their clients.

(5) If at any times the mediator determines that the issues are not suitable for media-

tion, the mediator may refer the matter back to the court to be determined in further proceedings

as ordered by the court.

(6) The mediator has no authority to make a decision or impose a settlement upon

the parties. Any settlement must be voluntary. The parties may reach a partial settlement on the

issues and preserve the right to litigate remaining issues. In the absence of settlement, the parties

retain their rights to a resolution of all issues through litigation.

(7) Any agreement reached by the parties through the mediation process on all or

some of the disputed issues must be reduced to writing, signed by each party, and filed with the

court by the parties.

(8) If no settlement is reached by the date specified in the schedule approved or mod-

ified under paragraph (2), the parties must notify the court in writing. The matter will then be de-

termined by the court as provided in any agreement reached in the mediation and approved by the

court or, in the absence of agreement, as ordered by the court.

(e) If a party, lawyer, or other person who is required to participate in 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 ex-

penses, including attorney fees, of the opposing party, and any fees and expenses of the mediator,

incurred by reason of the nonappearance, unless the court finds that such an award would be un-

just in the circumstances.

(2) In addition, the court may upon motion of a party, or upon its own motion, 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 circum-

stances.

Reporter’s Notes

Rule 16.1 is added to make clear that mediation may be ordered in a Probate Division

proceeding and to provide standards and a procedure for the process. The rule is not intended to

preclude voluntary use of mediation or another form of ADR by agreement of the parties without

judicial involvement. See discussion of Rule 16.1 (c)(1) and (2) below. [This rule is similar to

V.R.F.P. 18 regarding mediation to provide uniformity of practice in the courts.]

Rule 16.1(a) specifies that the rule applies only in the matters covered by the Probate Di-

vision pursuant to V.R.P.P. 1.

16

Rule 16.1 provides that, with important exceptions set out in subdivision (c), the court may

order mediation of any or all issues at any time after commencement of the action on its own or a

party’s motion on a determination that mediation would resolve or clarify the issues and that me-

diation would serve the interests of the parties and the court in “a fair economical, and effective

resolution of the issues.” The court has the discretion to establish the allocation of the fees and

expenses related to mediation including, but not limited to, allocation of fees and expenses to be

paid from the trust or estate.

Rule 16.1(c)(1) and (2) make clear that the rule is not intended to preclude voluntary use

of mediation by agreement of the parties. Under paragraph (c)(1), the court will not order mediation

if the parties certify that they voluntarily engaged in mediation with a mediator of their choice

before the action was commenced. Alternatively, under paragraph (c)(2), if the parties agree on the

record after the commencement of the action that they will engage in mediation, mediation will not

be ordered. Note that these two provisions come into play only if a party has moved for mediation

and withdraws the motion or the court has indicated an intention to order mediation on its own

motion. If no motion for mediation has been made or proposed, the parties are free to engage in

mediation or another form of ADR at any time as part of their efforts to settle the issues between

them.

Rule 16.1 (c)(3) requires the court to refrain from ordering mediation if the court deter-

mines that mediation would not be appropriate, render a hardship or for any other reason. [This

rule differs from V.R.F.P. 18.]

Rule 16.1(d) provides details of the process by which mediation ordered by the court under

Rule 16.1(b) is to be carried out.

Provisions of subdivision (d) describe standard mediation practice. The mediation schedule

prepared by the parties and mediator is subject to approval and modification by the court. The

mediator may meet separately with the parties at the outset and may do so at any time during the

mediation. The parties are to attend all sessions and participate in good faith. They may be accom-

panied by counsel. Under paragraph (d)(5), if the mediator determines for any reason that the matter

cannot be mediated, the mediator may send the matter back to the court for judicial determination.

Paragraph (d)(6) provides that any settlement reached must be voluntary. The parties have

the right to litigate any issues not settled in the mediation. If no settlement is reached by the sched-

uled date, the parties must notify the court in writing. The court may then determine the matter in

accord with any agreement that has just been reached, or may order further proceedings in its dis-

cretion.

Subdivision (e), based on V.R.C.P. 16.3(h), has been added to assure appropriate partici-

pation in the mediation process

2. That these rules are prescribed and promulgated effective ______________, 2015. The

Reporters’ Notes are advisory.

3. That the Chief Justice is authorized to report these rules to the General Assembly in ac-

cordance with the provisions of 12 V.S.A. § 1, as amended.

Dated in Chambers at Montpelier, Vermont, this ____ day of _________, 2015.

____________________________________

Paul L. Reiber, Chief Justice

____________________________________

John A. Dooley, Associate Justice

17

__________________________________

Marilyn S. Skoglund, Associate Justice

___________________________________

Beth Robinson, Associate Justice

_____________________________________

Harold E. Eaton, Jr., Associate Justice

Karen L. Richards joined the Vermont Human Rights Commission (VHRC) as the Executive Director

on March 18, 2013. She oversees all operations of the HRC and acts as its legal counsel. Prior to her ap-

pointment to this position, Karen was the Poverty Law Project Director at Vermont Legal Aid, Inc.

(VLA) for fourteen years (1998-2013). Prior to assuming her position at VLA, she was legal counsel to

the Vermont Department (now Agency) of Education from 1993-1998, where she specialized in disabil-

ity-related issues and investigated school harassment cases with the VHRC. As a staff attorney at Con-

necticut Legal Services from 1983-1993, Karen’s areas of expertise included housing and special educa-

tion. Karen was admitted to the practice of law in 1982 in Connecticut and in 1993 in Vermont. She is

also admitted to the U.S. District Court of Vermont. Ohio University (B.A. 1979); University of Con-

necticut School of Law (J.D. 1982).

18

19

20

Vermont Rules of Civil Procedure, Mediation Rule 16.3

https://www.vermontjudiciary.org/LC/Statutes%20and%20Rules/PROPOSEDVRCP4_16.3and80.10.pdf

Vermont Agricultural Mediation Program

http://vtamp.emcenter.org/ contact: Julie Hoyt 802-583-1100 x 102

Special Education Mediation link: http://education.vermont.gov/special-education/parental-resources

Contact: Clare O’Shaughnessy 802-479-1761 clare.oshaughnessy@vermont.gov

Civil Rights Mediation

Julio Thompson is an Assistant Attorney General for the State of Vermont and

Director of the Attorney General's Civil Rights Unit, which enforces Vermont's laws

regarding employment discrimination, fair employment practices, and hate crimes.

Julio has been practicing in the areas of employment, labor, and civil rights law

since 1991, and spent his first 15 years of practice in Los Angeles before moving to

Vermont.

Links:

Civil Rights Unit Investigative Process

http://ago.vermont.gov/divisions/civil-rights/employment-law/civil-rights-unitprocess.php

Waivers of EEO claims

EEOC, Understanding Waivers of Discrimination Claims in Employee Severance Agreements

http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html

Links re taxability of employment settlements

ABA, Tax Consequences of Settling an Employment Claim

http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/tax_conse-

quences_of_settling_an_employment_claim.html

IRS Publication 4345, Settlements Taxability

https://www.irs.gov/pub/irs-pdf/p4345.pdf

ENE IN FEDERAL COURTMediation by another name?

ENE IN FEDERAL COURT

LOCAL RULE 16.1

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

Purpose: Reduce cost of litigation by providing litigants with an opportunity …………….

ENE IN FEDERAL COURT

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• To articulate respective positions

• To hear, first hand, the other parties’ positions

• For a neutral assessment of the strengths/weaknesses of case

• For realistic settlement negotiations

• For narrowing the issues and structuring discovery if no settlement

LR 16.1(a)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

WHO MUST ATTEND ENE?

Just about every case, unless exempted by court on motion for good cause or that does not fall into a category listed in the rule

LR 16.1(b)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

•The ENE program is administered by the federal court clerk’s office. Beth Cota is the clerk who handles the program.

LR 16.1(c)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

HOW TO BECOME AN ENE EVALUATOR• An attorney for five years with significant trial and

substantive experience that serves the purposes of the ENE program; or• A non-attorney or attorney for less than five years but

with experience in a substantive or legal area that serves the program. (There is no one on the panel who is not an attorney at this time.) LR 16.1(d)(2)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• If you want to get on the ENE panel, call Beth Cota.

• LR 16.1(d)(1)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• Compensation:• $500 for a half day, plus time to review statements and file the post-ENE

report. This fee has been the same since 1994.

• If the ENE session exceeds a half day (generally regarded as four hours), the parties need to agree on the amount of excess payment.

• The parties can stipulate to a different payment and most do.

• Get this figured out long ahead of time; when you file your discovery stip.

• LR 16.1(d)(3)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• Choosing an ENE’r• You can stipulate to use someone on the ENE panel or someone not on the

ENE panel.

• If you use someone who is not on the panel, you need to file a written stipulation and that person must sign the stipulation as well.

• LR 16.1(d)(4)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• Selection Process for ENE• After last answer filed, clerk sends a list of ENE’rs (randomly selected) that is

always one more than the number of parties;

• Parties have two weeks to select or clerk will select.

• If no agreement, parties each strike one recommended ENE’r.

• Alternatively, parties can stipulate to an ENEr.

• LR 16.1(e)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERL COURT

• Scheduling• In the mid-point of the process;

• Basically, can agree to extend if the trial-ready date is not extended;

• Otherwise, need court permission

LR 16.1(f)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• Attendance• Real person

• With settlement authority

• “Settlement authority” means the control over full financial resources to settle the case

• People can be excused if• Hardship

• Request is made in writing at least three weeks out

• Available by phone

• A substitute familiar with the case attends AND

• Court approves LR 16.1(g)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FDERAL COURT

• ENE Statements• Filed two weeks prior to session

• No more than 10 pages

• Outline factual disputes, agreements and legal issues

• Must attach key documents

• Must NOT be filed with the Court

• LR 16.1(h)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• Process• ENEr has discretion

• Parties must be prepared to discuss realistic case value

• Presentation by each party

• ENEr helps parties to assess areas of agreement and stipulate to those

• ENEr assesses case

• Can go into private caucus and employ mediation techniques

• Estimate likelihood of liability and range of damages

• If no settlement ENEr MUST discuss follow up and help develop plan for discovery and other settlement techniques

• If party does not participate in good faith, ENEr can file a motion LR 16.1(i)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• ENE Report• ENEr must file report with court within 21 days of session

• Report must contain• Who participated

• When session was held

• Whether any substitute arrangements were made (e.g. persons no in attendance)

• Date statements were received

• Whether parties made statements at the session

• Whether the case settled

• DO NOT the amount or terms of settlement or personal assessment of case• LR 16.1(j)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• CONFIDENTIALITY• ENE is confidential

• But the parties can stipulate to narrow the scope of the trial

• LR 16.1(k)

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT• Early Neutral Evaluation (ENE)

• The specific type of Alternative Dispute Resolution (ADR) program in effect for the District of Vermont is Early Neutral Evaluation (ENE). ENE is a nonbinding ADR process designed to improve case planning and settlement prospects by providing litigants with anearly advisory evaluation. The rules and procedures governing Vermont’s ENE program are detailed by Local Rule of Procedure 16.1. Similar to most ADR or mediation programs in use by other federal courts, the purpose of Vermont’s program is to reducecost, delay and potential litigation faced by the parties.

• Under ENE, after the opportunity for limited discovery, litigants meet with an impartial, neutral evaluator selected by the parties. The evaluator is an experienced attorney knowledgeable in the subject matter being litigated. The parties are required to submit a report outlining their respective positions to the evaluator. After reviewing the reports, the evaluator meets with the parties and discusses the merits of the case including the strengths and weaknesses of the party’s positions. The evaluator is then responsible for submitting a short report to the Court summarizing the outcome of the evaluation session. Pursuant to the need for confidentiality, the evaluator does not disclose or include in the report any professional opinion or assessment which may beprovided to the parties or the contents of any substantive matters which are discussed during the ENE session. After proceeding through the ENE process, in many instances, the parties agree to settle the case prior to judicial involvement. For those cases which do not settle, the evaluator is in a position to assist the Court in clarifying discovery issues and to possibly narrow the scope of the dispute.

• Vermont’s ENE program has been in operation since 1994. The Court’s ENE Panel is currently comprised of 41 experienced evaluators. Under Vermont’s program, certain bankruptcy matters – when designated by the bankruptcy judge – are also eligible for the ENE process.

• ENE Administrator Contact Information- Beth Cota (802) 951-6395 ext. 113

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

•What to do if party doesn’t participate in good faith• File a motion with the court• IBM v. Tokyo Electron America, Inc., 2005 WL 6133903

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE

ENE IN FEDERAL COURT

• Statistics

Court keeps track of settlements, etc.

VBA Mid-Winter Meeting April 1, 2016 Mediation CLE