ORAP 15.05

(1) Cases Subject

(a) The procedures in this rule apply to cases filed in the Court of Appeals.

The Chief Judge or the Chief Judge's designee shall determine the individual cases or

categories of cases that may be included or excluded from the appellate settlement

conference program (program). Upon the court's own motion, at any time, a panel of the

Court of Appeals may refer a case to the program.

(b) (i) A settlement conference shall be held for any case assigned to the

program unless the program director or the court cancels the conference or

removes the case from the program. Settlement conferences may be held in-person, by remote means, or in a hybrid format. The program director shall

determine the appropriate format for the settlement conference on a case-by-case

basis. A party or person with actual authority to settle the case must participate in

and be available during the duration of the program settlement conference unless

that person's absence is approved prior to the conference by the program director.

(ii) After the first settlement conference is held, any party may

withdraw from the program, except that the program director may require the

parties to attend one or more additional conferences as the program director

deems reasonable and necessary to facilitate a settlement. If the program director

requires the parties to attend one or more additional conferences, the neutral's fee

for any additional conference will be paid by the program and not by the parties.

(2) Supervising Judge and Program Director

(a) The Chief Judge shall have overall responsibility for the program but may

appoint a supervising judge and/or a program director for the program.

(b) If a supervising judge is appointed, the supervising judge shall have the

powers needed to administer the program. The Chief Judge, and the supervising judge if

one is appointed, may delegate authority to the program director.

(c) If the Chief Judge, or the supervising judge if one is appointed, serves as a

judge or judge pro tempore of the Court of Appeals, the Chief Judge or supervising judge

may not participate in the consideration of any case in which the judge is aware of

confidential information concerning the case obtained from the program.

(d) If a judge or judge pro tempore of the Court of Appeals serves as the

neutral in a case and the case does not settle and proceeds in the Court of Appeals, that

judge shall not thereafter participate in any way in the case. Further, such judge shall

take steps as necessary to ensure that the judge does not disclose to other judges or to

court staff any communication from the settlement conference.

(3) Neutrals

(a) The Chief Judge, supervising judge, and/or program director shall

determine the responsibilities and qualifications of neutrals to be provided by the

program and shall approve the neutrals selected for the program. The supervising judge,

if one is appointed, or program director will assign neutrals for individual cases.

(b) A neutral shall not act in any other capacity in the case.

(4) Abeyance of Appeal

(a) (i) On assignment of a case to the program, the court will hold

preparation of the transcript (including correcting it or adding to it), preparation of

the record, and briefing, in abeyance for a period of 120 days after the date of the

notice of assignment of the case to the program. During that time, a party to the

appeal may file an amended designation of record. A party wishing to hold in

abeyance any other aspect of the appeal or seeking an extension of time to

complete any other task required by law or by the Oregon Rules of Appellate

Procedure must file an appropriate motion with the court.

(ii) At the end of the 120-day abeyance period, the program director

may extend the abeyance period for as long as reasonably necessary to permit the

parties to continue settlement discussions, participate in a settlement conference,

implement a settlement, and/or dismiss the appeal pursuant to a settlement.

(b) If a respondent files a motion to dismiss the appeal or an appellant files a

motion to stay enforcement of the judgment when the case is being held in abeyance, in

addition to serving a copy of the motion on all other parties to the appeal, the party shall

serve a copy of the motion on the program director accompanied by a letter of transmittal

stating whether the party prefers that the motion be decided before the case proceeds in

the program. The program director may direct that the case proceed in the program or

may terminate the referral. If the program director terminates the referral, the case may

be re-referred to the program after the court disposes of the motion to stay enforcement or

denies the motion to dismiss.

(c) The program director may reactivate a case held in abeyance at any time:

(i) On the program director's own motion; or

(ii) On motion of a party showing good cause for reactivating the

appeal. In addition to serving a copy of the motion on all other parties to the

appeal, a party filing a motion to reactivate shall serve a copy of the motion on the

program director.

(5) Submission of Information

The parties may be required to submit information to facilitate the screening of cases for

the program or the program settlement conference, including but not limited to the program’s

Settlement Conference Statement form. The parties shall submit this information in a timely

manner to the program director and the other parties to the appeal as designated in the request.

Information submitted to the program at the program’s request shall be a confidential mediation

communication pursuant to subsection (6) of this rule.

(6) Confidentiality

(a) The Appellate Settlement Conference Program is a "mediation program,"

as defined in ORS 36.110(8), and the provisions of ORS 36.100 to 36.238 apply to the

program, including the provisions of ORS 36.220 providing that "mediation

communications," as defined in ORS 36.110(7), are confidential. For purposes of the

program, "mediation," which is defined in ORS 36.110(5), begins when an appeal is

referred to the program and ends when the program director removes the appeal from the

program, or when the court dismisses the appeal, whichever occurs first.

(b) All materials submitted to the supervising judge, the neutral, and/or the

program director and all materials created by the supervising judge, the neutral, and/or

the program director that pertain to a program settlement conference and are not a part of

the record on appeal shall be maintained separately from the record of the case. These

materials shall not be subject to disclosure, except as the law may require or as the parties

and the supervising judge, the neutral, and/or the program director may all agree. The

materials referred to in this paragraph shall be destroyed at the time and in the manner

prescribed by the Oregon Judicial Department’s records retention policies.

(c) The Chief Judge, supervising judge, and/or program director may request

the parties or the neutral or both to provide oral and written evaluations of the case

settlement process. The materials referred to in paragraph (6)(b) of this rule, and oral and

written evaluations of the case settlement process, may be used to evaluate the program.

Any evaluation of the program, whether disseminated to the appellate courts or to the

public, shall not disclose specific case identifying information.

(7) Appellate Settlement Conference Program Fees

(a) For the purposes of this paragraph, multiple parties who are represented by

the same attorney or attorneys shall be deemed to be a single party. Except as provided

in paragraph (d) of this subsection, each party to the appeal who participates in the

program shall pay the initial program fee prescribed in this subsection. Each party shall

pay the initial program fee directly to the neutral or, if instructed by the program director,

to the State Court Administrator. Except as provided in paragraph (d) of this subsection,

each party shall pay the initial program fee no later than fourteen (14) days prior to the

date of the first settlement conference. Unless otherwise ordered by the program director,

each party to a general civil, domestic relations, or probate appeal must pay an initial

program fee of $500. Parties to a workers’ compensation appeal are not required to pay a

program fee if the mediation is conducted through the Workers’ Compensation Board’s

mediation program. In all other appeals, the parties, neutral, and program director shall

agree on the fees.

(b) (i) The initial program fee shall cover up to one hour of neutral

preparation time and up to five hours of settlement conference time whether or

not the settlement conference involves more than one session.

(ii) In complex cases, if the neutral reasonably needs more than one

hour of preparation time, the neutral may contact the program director and the

program director may contact the parties to discuss whether to include the

additional preparation time in the hours covered by the initial program fee.

(iii) If the parties agree to extend the settlement conference beyond the

initial five hours, the parties shall compensate the neutral for any additional time

that is expended and recorded by the neutral, with the total cost of the additional

time being shared equally by the parties. The rate shall be the mediator’s hourly

mediation rate as identified in the program’s Notice of Assignment of Neutral,

unless otherwise agreed to by the parties, the neutral, and the program director.

(c) If an individual or entity who is not a party to the appeal participates in the

settlement conference as part of an attempt to reach a global resolution of a dispute or

disputes outside the scope of the appeal but involving some or all of the parties to the

appeal, the program director may require each such individual or entity to pay the

program fees prescribed in paragraph (a) of this subsection.

(d) The Chief Judge or the Chief Judge's designee may waive payment of

program fees on motion of a party based on a showing that the party is financially unable

to pay the fees without substantial economic hardship in providing basic economic

necessities to the party or the party's dependent family. If liability for payment of a

party's share of program fees is waived, that party's portion of program fees shall be paid

by the court. If a party's program fees have been paid by the court and the party

thereafter pays the fees, the fees shall be paid to the State Court Administrator as

provided in paragraph (e) of this subsection.

(e) When a settlement conference is conducted by a neutral, an administrative

law judge, "Plan B" retired judge, or other person who does not accept a fee for the

services, the parties shall make the program fees payable to the State Court

Administrator. Payment can be made via the court’s electronic filing system, by credit

card via phone through the Court of Appeals records office, or by mailing a check

referencing the case name and number to: Court of Appeals, 1163 State Street, Salem,

OR 97301-2563.

(f) A party who fails to pay the mediation program fee and/or any additional

mediation fees shall remain liable for the unpaid fees. If, by the time the appellate

judgment issues, a party has not paid all mediation fees owed and such fees have not been

waived, the amount of the unpaid mediation fees will be included in a money award

against the party who failed to pay in favor of the Judicial Department in the appellate

judgment.

(8) Actions Are Not Reviewable

Except as necessary to decide a motion for sanctions under subsection (9) of this rule, the

actions of a neutral, a program director, or a supervising judge shall not be reviewed by the Court

of Appeals or by the Supreme Court.

(9) Sanctions

At the request of the program director, the court may impose sanctions against a party, or

counsel for a party, or both, for the failure of the party, or counsel, or both to perform any act

required by this rule or by the written policies of the Appellate Settlement Conference Program.

Sanctions include but are not necessarily limited to monetary assessments and dismissal of the

appeal.