TITLE 5 – CIVIL CODE CHAPTER 9 – MEDIATION

TABLE OF CONTENTS

Section 10 Purpose 1

Section 20 Definitions 1

Section 30 Scope 1

Section 40 Waivers and Exemptions …………………………………………………………………………………………

Section 50 Confidentiality ……………………………………………………………………………………………………….

Section 60 Scheduling ……………………………………………………………………………………………………………

Section 70 Binding Agreements in Mediation …………………………………………………………………………….

Section 80 Selection of Mediators …………………………………………………………………………………………….

Section 90 Attendance …………………………………………………………………………………………………………….

Section 100 Report of the Court ………………………………………………………………………………………………..

Section 110 Enforcement …………………………………………………………………………………………………………..

Section 120 Fees ………………………………………………………………………………………………………………..

Section 130 Payment of Mediators ……………………………………………………………………………………………..

Section 140 Mediator Qualification and Removal…………………………………………………………………………

TITLE 5 – CIVIL CODE CHAPTER 9 – MEDIATION‌

Legislative History: Enacted and codified on December 11, 2019 by Resolution No. C12-285-19 and Ordinance No. 48-19.

Section 10 Purpose (5 PYTC § 9-10)

The Pascua Yaqui Tribe established the Mandatory Civil Mediation Program for parties to resolve their disputes outside of the adversarial process. Mandatory mediation is an informal and flexible dispute resolution process which assists the parties in resolving their own disputes through the guidance of a neutral mediator. This process is the first step for all family related civil cases to be filed in the Pascua Yaqui Tribal Court (PYTC).

Section 20 Definitions (5 PYTC § 9-20)

1. “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.
2. “Mediator” means an individual who completed necessary training to conduct mediation between parties in dispute (see 5 PYTC § 9-130(B) for qualification).
3. “Co-Mediator” means an individual who assists in conducting the mediation.
4. “Mediation Agreement” means a written voluntary agreement the parties have reached during the mediation process.

Section 30 Scope (5 PYTC § 9-30)

1. All civil cases involving families shall be referred to mediation by the court clerk. Upon request of one of the parties, the court may decline to refer a matter to mediation if it appears that mediation is inappropriate because of the parental unfitness, substance abuse, mental incapacity, domestic violence, or other good cause, or because mediation will cause undue delay. Mandatory mediation applies to initial proceedings and modification proceedings. Furthermore, the Judge at his/her discretion may refer a case to mediation at any time during the court proceeding.
2. Participation is mandatory for the following cases:
   1. Marriage; Dissolution of Marriage
   2. Child Custody/Visitation
   3. Adoption
   4. Permanent Guardianship/Conservatorship
   5. Paternity
   6. Child Support
   7. Probate

Section 40 Waivers and Exemptions (5 PYTC § 9-40)

1. The following cases are exempt from mandatory mediation:
   1. Domestic Violence
   2. Child abuse, child sexual abuse, threats against children or siblings, emergency custody, and orders of protection.
2. Upon application of a party, the court may grant a waiver from mandatory mediation when:
   1. The party demonstrates a history of domestic abuse as specified in 4 PYTC § 3-100.
   2. The parties file a stipulated settlement agreement addressing all issues being resolved; or
   3. The party shows good cause for a waiver.

Section 50 Confidentiality (5 PYTC § 9-50)

1. The mediation process is confidential. Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of the following exceptions is met:
   1. All of the parties to the mediation agree to the disclosure.
   2. The communication, material or act is relevant to a claim or defense made by a party to the mediation against the mediator or the mediation program arising out of a breach of a legal obligation owed by the mediator to the party.
   3. The disclosure is required by statute.
   4. The disclosure is necessary to enforce an agreement to mediate.
   5. The disclosure is made in a report to a law enforcement officer, the department of child safety or adult protective services by a court appointed mediator who reasonably believes that a minor or vulnerable adult is or has been a victim of abuse, child abuse, neglect, exploitation, physical injury or a reportable offense.
2. Except pursuant to subsection (A), paragraph 2, 3, 4 or 5 of this section, a mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation proceedings. Evidence that exists independently of the mediation even if the evidence is used in connection with the mediation is subject to service of process or subpoena.
3. Notwithstanding subsection (A) of this section, when necessary to enforce or obtain approval of an agreement that is reached by the parties in a mediation, the terms of an agreement that is evidenced by a record that is signed by the parties are not confidential. The agreement may be introduced in any proceeding to obtain court approval of the agreement, where required by law, or to enforce the agreement. If a party requests that all or a portion of the agreement remain confidential, the agreement may be disclosed to the court under seal with a request to issue appropriate orders to protect the confidentiality of the agreement, as permitted by law.
4. Notwithstanding subsection (A) of this section, threatened or actual violence that occurs during a mediation is not a privileged communication. The mediator may inform the parties that threatened or actual violence is not privileged and may be disclosed.

Section 60 Scheduling (5 PYTC § 9-60)

1. After the court has entered an order or referral to mediation, the mediator will schedule joint or individual conferences with the parties. Each party must attend the conferences as the mediator directs.
2. The mediation shall be completed within a reasonable time.

Section 70 Binding Agreements in Mediation (5 PYTC § 9-70)

1. Validity. An agreement between the parties is valid and binding on the parties if:
   1. the agreement is in writing and signed by the parties personally or by counsel on a party’s behalf; or
   2. the agreement’s terms are stated on the record before a judge, judge pro tempore, or court reporter; or
   3. the agreement’s terms are stated in an audio recording made before a mediator.
2. Court Approval. An agreement under this rule is not binding on the court until it is submitted to and approved by the court as provided by law.
3. Any agreement between the parties during the mediation must contain their acknowledgment that:
   1. Each party entered the agreement voluntarily, without threat or undue influence, and after full disclosure of all relevant facts and information;
   2. each party intends the agreement to be final and binding;
   3. the agreement is fair and equitable; and
   4. if the parties have minor children in common, the agreement is in the best interests of the children.

Section 80 Selection of Mediators (5 PYTC § 9-80)

1. Privately Retained Mediators. The parties may agree to, and jointly select from other private mediators at their own expense.

2. Court Appointed Mediator. The Court shall appoint a mediator for the parties.

3. Any conflict of interest on the part of the Mediator shall be immediately disclosed to the Pascua Yaqui Tribal Court.

4. Co-Mediators may be assigned upon the Court’s discretion. Any request for a co-mediator may be submitted to the court for approval.

Section 90 Attendance (5 PYTC § 9-90)

The mediator may permit persons other than parties and their counsel to attend or participate in a mediation, if those other persons agree in writing to be bound by this rule’s confidentiality provisions. Counsel for a party may be excluded from a private mediation conference only if the party and counselor agree. However, the Pascua Yaqui Court policy may authorize the exclusion of counsel.

Section 100 Report to the Court (5 PYTC § 9-100)

1. By the parties. The parties must notify the court when the mediation has concluded and advise the court of any agreements that fully resolve their issues. The parties must provide this notice not later than 10 days after the mediation concludes, but also not later than 10 days before the date set for trial or hearing.

2. By the Mediator. If the parties reach a partial agreement or no agreement during mediation, the mediator must file a brief report with the court stating that the parties met and attempted to resolve their differences but that the mediation was unsuccessful. The report also must state any agreements the parties reached and the remaining unresolved issues. The mediator must not report the parties’ respective positions and must not comment on or offer any opinion about a party’s position. The mediator also may advise the court if the parties or the mediator believes that further mediation would be helpful for resolving the remaining issues.

Section 110 Enforcement (5 PYTC § 9-110)

1. The court may enforce the requirements of these rules through contempt proceedings, compliance hearings, imposition of sanctions, or other means the court deems appropriate.

2. Failure of a party to appear. The parties are required to appear at mediation conferences as the mediator directs. The mediator must report to the court the identity of a party who fails to appear, and the court may impose sanctions.

3. Failure to complete mediation. The court will not continue a scheduled trial or hearing based on a failure to complete meditation unless a party shows good cause for the continuance.

Section 120 Fees (5 PYTC § 9-120)

1. If a judicial officer provides mediation services, a fee shall not be imposed.
2. The parties must pay the appropriate filing fees upon any court filing.

Section 130 Payment of Mediators (5 PYTC § 9-130)

Subject to continued funding availability, mediator fees will be paid through the Pascua Yaqui Tribal Mandatory Civil Mediation Program.

Section 140 Mediator Qualifications and Removal (5 PYTC § 9-140)

1. Mediator Qualifications:
   1. All mediators providing mediation services in the Pascua Yaqui Tribe shall complete 40-hours of approved mediation training.
   2. Mediators must participate in the Pascua Yaqui Tribal Culture and Language Program.
   3. All mediators involved in family law mediation must have 1-year of experience in family law related mediation.
   4. Pascua Yaqui Tribal Members may apply to become mediators but must complete 40-hours of mediation training.
   5. Mediators are expected to comply with these rules, the Standards of Professional Conduct for Mediators and to act consistent with principles of good moral character. In the event a mediation participant has a complaint about a mediator’s conduct, s/he shall file a complaint with the Pascua Yaqui Tribal Court and the PYTC may remove a mediator for cause.