|Table of State Neutral Compensation Statutes|
|By: Elan E. Weinreb, Esq., Managing Member, The Weinreb Law Firm, PLLC|
|State||Statute Citation||Compensation Amount or Details||Comments||Research Contributors|
|Alabama||Alabama Rules of Appellate Mediation Rule 4(f)|
Alabama Civil Court Mediation Rule 15(a-c)
|For civil appellate-level mediation, "Agreement of Parties but with No Court Involvement" - "(f) Fees and Expenses. The parties shall mutually agree on the fees of the mediator selected by them. If a mediator is appointed, the mediator's fee and incidental expenses shall be shared equally between the parties, unless otherwise determined by the final mediation agreement. The mediator may require an advance deposit covering the estimated cost of mediation, but in any event, arrangements for payment of the cost of mediation and incidental expenses must be coordinated directly with the mediator. Attorneys for each party shall see to prompt payment of the fees and expenses. If satisfactory arrangements for compensation cannot be made, then the parties shall so advise the appellate mediation office, and the appellate mediation administrator will name another mediator."|
For civil trial-level mediation, "Reasonable Compensation Plus Deposits" - "(a) Expenses. The expenses of a witness for a party shall be paid by the party producing the witness. All other expenses of the mediation, including necessary travel and other expenses of the mediator, the expenses of any witnesses called by the mediator and the cost of any evidence or expert advice produced at the direct request of the mediator, shall be borne equally by the parties unless the parties agree otherwise, or unless the court directs otherwise. (b) Mediator's Fee. A mediator shall be compensated at a reasonable rate, agreed to by the parties, or as set by the court. The mediator's fee shall be borne equally by the parties, unless they agree otherwise, or unless the court directs otherwise pursuant to Rule 2. (c) Deposits. Before the mediation process begins, each party to the process shall deposit with the mediator such an amount of the anticipated expenses and fees as the court shall direct or the mediator reasonably requires. When the mediation process has been terminated, the mediator shall render an accounting, requiring payment of additional expenses and fees by the appropriate parties, or returning any unexpended balance to the appropriate parties."
|Alabama does not appear to have court-annexed arbitration, but there is a draft Arbitration Act from 2001 that provides for arbitrator compensation as set forth in an award. See Section 21(4) of the Draft Alabama Arbitration Act at https://alabamaadr.org/web/roster-documents/documents/arb_Alabama_Arbitration_Act_Draft.pdf|
Alabama appellate mediators are expected to handle two cases (which are pre-perfection) pro bono per year upon request from the Court. See Alabama Rules of Appellate Mediation Rule 4(h).
|Alaska||Alaska Rule of Civ. Proc. 100(b)(3)|
Alaska Rule of Prob. Proc. 4.5(b)(3)
|For civil mediation or early neutral evaluation (that's found in Rule 100(i)), fees are by agreement of the parties subject to allocation by the Court - "(b) Order. An order of mediation must state: . . . (3) that the costs of mediation are to be borne equally by the parties unless the court apportions the costs differently between the parties"|
For probate mediation or early neutral evaluation (that's found in Rule 4.5(j)), the compensation scheme is as above but restricts the use of estate funds to pay for mediation - (b) . . . (3) (3) that the costs of mediation are to be borne equally by the interested persons unless the court apportions the costs differently; estate funds may be used to pay the costs of mediation only upon order of the court or agreement of all persons whose interests would be affected by payment from the estate"
|Alaska has an attorney-client fee dispute arbitration program that provides for arbitrator compensation in complex cases, including but not limited to any case where the amount-in-controversy is over $50,000. However, estimates of fees must be provided for in advance. See https://alaskabar.org/for-the-public/attorney-fee-disputes/faqs-fee-arbitration/|
Alaska does not appear to have court-ordered mediation for civil disputes as initiated by the court (i.e., sua sponte court-ordered mediation). Rather, an application for mediation must be made by one of the parties to a dispute. See Alaska Rule of Civil Procedure 100(a). Likewise, arbitration of general civil disputes does not appear to be mandatory. See id. Rule 100(i).
See also Alaska Court System - Mediation - Frequently Asked Questions - "How much does mediation cost? Under Civil Rule 100 and Probate Rule 4.5, if the court orders private mediation, the parties share the cost of mediation unless the judge orders otherwise. When you mediate and it isn't court ordered, you decide how to share the cost. The court offers low-cost mediation in a variety of cases, including divorce with children, child custody, minor guardianships, adult guardianships, and Child in Need of Aid."
|Arkansas||Please insert any comments you may have here.|
|California||CODE OF CIVIL PROCEDURE - CCP PART 3. OF SPECIAL PROCEEDINGS OF A CIVIL NATURE - TITLE 3. OF SUMMARY PROCEEDINGS - SECTION 1141.18(b) |
CODE OF CIVIL PROCEDURE - CCP PART 3. OF SPECIAL PROCEEDINGS OF A CIVIL NATURE - TITLE 11.6. CIVIL ACTION MEDIATION - SECTION 1775.8(a)
|Left up to Judicial Council rules after certain minimum thresholds are met - "(b) The Judicial Council rules shall provide for the compensation, if any, of arbitrators. Compensation for arbitrators may not be less than one hundred fifty dollars ($150) per case, or one hundred fifty dollars ($150) per day, whichever is greater. A superior court may set a higher level of compensation for that court. Arbitrators may waive compensation in whole or in part. No compensation shall be paid before the filing of the award by the arbitrator, or before the settlement of the case by the parties." |
For Mediators: "(a) The compensation of court-appointed mediators shall be the same as the compensation of arbitrators pursuant to Section 1141.18, except that no compensation shall be paid prior to the filing of a statement of nonagreement by the mediator pursuant to Section 1775.9 or prior to settlement of the action by the parties."
|From: https://www.courts.ca.gov/policyadmin-jc.htm - "The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff help implement the council’s policies." |
Some courts, such as the Alameda County Court, provide for free time (2 hours). See http://apps2.alameda.courts.ca.gov/adr/Default.aspx/. How this historically and practically squares with the minimum compensation of $150 set forth in CCP Section 1141.18(b) is spelled out in this article: https://www.mediate.com/articles/parselle3.cfm. Short answer: California ran out of money to compensate mediators, and note the phrase "if any" concerning compensation in CCP Section 1141.18(b).
See also California Rules of Court Rule 10.781(c)(2), requiring Court-related ADR neutrals to offer pro bono or "modest means" rates not "in at least one case per year, not to exceed eight hours." (https://www.courts.ca.gov/cms/rules/index.cfm?title=ten&linkid=rule10_781). Of course, the implication of this provision is to establish a default of compensation. Pro bono is the exception in California, not the rule, at the state level (although, as seen above, individual courts can differ).
|Colorado||Combination of Colo. Rev. Stat. § 13-22-303, Colo. Rev. Stat. § 13-22-305(3), Colo. Rev. Stat. § 13-22-313, and Private Contracting with Neutrals for Reduced Rates||Enabling statute leaving amount of compensation to a director of a state office of dispute resolution, which then contracts privately with mediators and other neutrals at reduced rates established by Supreme Court order - "There is hereby established in the judicial department the office of dispute resolution, the head of which shall be the director of the office of dispute resolution, who shall be appointed by the chief justice of the supreme court and who shall receive such compensation as determined by the chief justice."|
"(3) Each party who uses the mediation services or ancillary forms of alternative dispute resolution in section 13-22-313 of the office of dispute resolution shall pay a fee as prescribed by order of the supreme court. Fees shall be set at a level necessary to cover the reasonable and necessary expenses of operating the program. Any fee may be waived at the discretion of the director. The fees established in this part 3 shall be transmitted to the state treasurer, who shall credit the same to the dispute resolution fund created in section 13-22-310."
|The Colorado Office of Dispute Resolution and other ADR agencies (some county-specific) contract with mediators based upon the statutes appearing in the left columns. See the following links for more information and rates (and note that Colorado's Office of Dispute Resolution compensates mediators even in SMALL CLAIMS cases): |
1) A Party’s Guide to Colorado Court-Ordered Mediation (at page 8 - https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Court%20Programs/ODR/Mediation%20Guide%20for%20Colorado%20Courts/APartyGuide.pdf);
2) Mediation Guide for Colorado Courts (at pages 27-28 - https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Court%20Programs/ODR/Mediation%20Guide%20for%20Colorado%20Courts/Mediation%20Guide%20for%20Colorado%20Courts%20as%20Posted%20on%20Intraweb.pdf - "Rates vary from free, to $100.00 (CMS Civil and domestic), $120.00 (ODR for domestic, $150.00 for civil) per hour to $400.00 or more per hour.")
3) Fees for Services (as of 2018) as Ordered by the Colorado Supreme Court (Rice, C.J.) - https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Court%20Programs/ODR/Orders/2018%20Signed%20Fee%20Order.pdf
|Connecticut||Please insert any comments you may have here.|
|Delaware||Please insert any comments you may have here.|
|Florida||TITLE V - CHAPTER 44 - MEDIATION ALTERNATIVES TO JUDICIAL ACTION - 44.108(2) - Funding of mediation and arbitration. -|
Rule 10.380, Florida Rules for Certified and Court-Appointed mediators
|Depends on case type (i.e., whether family law-based or limited civil dispute with varying amounts-in-controversy) and comes with a funding plan - Established either by statute or Rules of the Supreme Court of Florida - |
"(2) When court-ordered mediation services are provided by a circuit court’s mediation program, the following fees, unless otherwise established in the General Appropriations Act, shall be collected by the clerk of court: (a) One-hundred twenty dollars per person per scheduled session in family mediation when the parties’ combined income is greater than $50,000, but less than $100,000 per year; (b) Sixty dollars per person per scheduled session in family mediation when the parties’ combined income is less than $50,000; or (c) Sixty dollars per person per scheduled session in county court cases involving an amount in controversy not exceeding $15,000.
No mediation fees shall be assessed under this subsection in residential eviction cases, against a party found to be indigent, or for any small claims action. Fees collected by the clerk of court pursuant to this section shall be remitted to the Department of Revenue for deposit into the State Courts Revenue Trust Fund to fund court-ordered mediation. . . . "
Rule 10.380 sets forth guidelines for mediators with respect to charging fees but does not specify any definite hourly, other time-based, or flat rate.
|"9. How much does it cost to go to mediation? The cost of mediation depends on many factors. In some cases (example: small claims) the court provides mediators for free. In family cases, the amount charged depends on whether the court program provides the mediator or the parties are selecting their own mediator. If the program provides the mediator, the amount charged depends on the parties’ combined or joint income. [See section 44.108(2), Florida Statutes]. Many circuits provide dependency mediation services at no charge to the parents. Check with the mediation program in your circuit to see if such services are available. Parties who select private mediators should expect to pay market rates. The ethical standards for mediators require that the mediator provide a written explanation of any fees and costs prior to the mediation. The mediator may have minimum fees and charge for travel time, postponements, cancellations, or other expenses. (See rule 10.380, Florida Rules for Certified and Court-Appointed mediators). If the parties do not select a mediator, the court will select a mediator and will set the fees the mediator may charge." (Emphasis added). |
From: Florida Courts Website - https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution/Mediation-in-Florida
|Georgia||2019 Georgia Code - Title 15 - Courts - Chapter 23: Court-Connected Alternative Dispute Resolution § 15-23-11. Compensation of nonvolunteer neutrals by the parties||Established by individual courts based on Georgia Commission on Dispute Resolution guidelines - "(a) Under guidelines promulgated by the Georgia Commission on Dispute Resolution, a court may set an hourly rate for compensation of nonvolunteer neutrals by the parties. Such costs shall be predicated upon the complexity of the litigation, the skill level needed by the neutral, and the litigants' ability to pay. (b) Under guidelines promulgated by the Georgia Commission on Dispute Resolution, a court may set a user's fee for alternative dispute resolution processes."||Enabling statute similar in form and scope to 28 U.S.C. § 658. |
Funding for ADR programs provided for by GA Code § 15-23-7 (2019) (maximum fee of $10 per case).
IMPORTANT STATEMENT ON COMPENSATION FROM GEORGIA COMMISSION ON DISPUTE RESOLUTION IN SECTION VI OF SUPREME COURT ADR RULES: "Although the contribution of volunteers to ADR programs throughout the country is inestimable, the Georgia Supreme Court believes that the comprehensive system of statewide ADR services envisioned by these rules cannot be handled entirely by unpaid volunteers. This court is convinced that in order to build and maintain a statewide system of ADR services of the extent and quality desired, there must be mechanisms for compensating neutrals at appropriate levels. This court also believes that the Georgia ADR program will require a combination of volunteers, salaried in-house neutrals, and free market neutrals in order to meet the highly varied demands and circumstances of courts in urban, rural, and suburban areas."
|Hawaii||Please insert any comments you may have here.|
|Idaho||Please insert any comments you may have here.|
|Illinois||1) Cook County Part 20 (Rules) Court-Annexed Civil Mediation - Rule 20.03(b) - Compensation of the Mediator |
2) Lake County Judicial Circuit Court - Part 3.00 Civil Division Mediation Program - Rule 7-3.04(C)(3), (5) Mediation Rules and Procedures
|For Cook County - $250/hr. (if parties cannot agree) - "Unless otherwise agreed in writing by and between the parties and the mediator, the mediator shall be compensated by the parties at the rate of $250.00 per hour. In the event that a person appointed by the Court or appointed with the Court’s assistance as the mediator refuses to accept an appointment at the rate of $250.00 an hour, the Court will appoint or assist in the appointment of an alternate court-certified mediator from the list of court-certified mediators who is willing to accept that rate. Unless otherwise agreed by the parties or ordered by the Court upon good cause shown, each party shall pay a proportionate share of the total charges of the mediator."|
For Lake County - As Determined by Court with One Hour Minimum Compensation - "3. When the parties cannot agree on a mediator, the Court shall appoint a mediator from the list of mediators as provided in LCR 7-3.05(A) of these Rules. The compensation for a mediator so appointed shall be shared proportionately by all parties participating in the mediation conference. Once a mediator has been appointed, the mediator shall be entitled to a minimum of one hour’s compensation . . . 5. The fee of an appointed mediator shall be subject to appropriate Order or Judgment for enforcement. Fees are the joint responsibility of each party and his counsel."
|Varies by county court. See "Compensation Amount" column for two examples.|
Lake County requires mediators to serve pro bono on two (2) cases per year but also allows "split" cases where if one party is indigent and the other can pay for mediation services, the party who can pay does pay, and the mediator is given pro bono credit for the indigent party. See Rules 7-3.04(C)(1) and (C)(4).
|Indiana||Please insert any comments you may have here.|
|Iowa||Please insert any comments you may have here.|
|Kansas||Please insert any comments you may have here.|
|Kentucky||Ky. Revised Statutes § 417.140|
Ky. Model. Med. R. 6
|Arbitrator Discretion - "417.140 Fees and expenses of arbitration. Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses, fees and other expenses incurred in the conduct of the arbitration shall be paid as provided in the award. Attorneys' fees shall not be awarded unless a provision therefor is contained in the written agreement submitted to arbitration."|
"Reasonable Compensation" - Rule 6. Mediator compensation - "The mediator shall be compensated at the rate agreed between the mediator and the parties if the mediator is chosen by agreement. If the mediator is appointed by the Court, the fee for the mediator shall be reasonable and no greater than the mediator's standard rate as a mediator. Unless otherwise agreed by the parties or ordered by the Court, the parties shall equally divide the mediator's professional fees."
|Alternative link to Model Mediation Rule 6 here: |
|Louisiana||La. Revised Statutes § 9:4109|
La. Revised Statutes § 13:5207
|Mediation: "Agreement Between the Parties or Selection of New Mediator" - "§4109. Cost of mediation . A. The cost of mediation shall be agreed in writing by the parties and the mediator prior to commencement of mediation. If there is no agreement on such cost, the court shall rescind the appointment and the selection of a mediator shall commence anew. B.(1) Unless otherwise ordered by the court in its referral order or unless the parties agree to some other allocation of cost: (a) The cost of mediation shall be taxed as costs of court, to be shared equally by the parties. (b) If the case is not settled by mediation, the costs of mediation shall be taxed as costs of court upon rendition of a final judgment.|
(2) No later than the conclusion of the mediation, whether or not successful, the parties shall pay the cost of mediation, unless the parties and the mediator have agreed otherwise. The mediator may intervene in any pending civil case between the parties to the mediation to enforce payment of the cost of the mediation. An intervention to enforce payment of the cost of the mediation shall be disposed of as a summary proceeding."
Small Claims Arbitration: "Court Enabled to Set Reasonable Compensation by Local Rule" - "§5207. Arbitration awards. A. The judge may refer small claims cases to an attorney at law who shall serve as arbitrator provided the parties agree to be bound by his arbitration. An attorney at law so appointed by the judge shall conduct the proceedings in the manner described in R.S. 13:5208(A), and, if authorized by rule of court, he may be entitled to reasonable compensation for his services to be paid from court funds if available."
|Louisiana is one of the few states that does not have set rates for neutrals. With respect to mediation, if the parties cannot agree on a mediator's rate, a new mediator is then selected. Query whether at some point, shrewd counsel could simply place a case into "mediation limbo" by refusing to agree to compensate the mediator. In addition, this system arguably paves a path for experienced neutrals to low-ball their less experienced colleagues out of economic existence by charging extremely low rates and then, once their less experienced colleagues drop off of rosters, raising their fees again back to market rates. Like a Venus Flytrap, the lack of regulation here is at first glance attractive but may ultimately prove to be fatal to a large-scale presumptive ADR system. |
With respect to small claims arbitration, compensation is determined by local courts based on rules they enact. While vague, this compensation scheme at least gives less experienced arbitrators a chance at advancing.
|Maine||Maine Revised Statutes 4-18-B(2) |
Maine R. Civ. P. 16(B)(d)(2)
|"Reasonable Per Diem Compensation Plus Expenses" - "2. ADR providers. The Judicial Department, through the State Court Administrator or the administrator's designee, shall contract for the services of qualified persons or organizations to serve as providers of ADR services to parties. The ADR providers are not employees of the State for any purpose. The ADR providers are entitled to be paid a reasonable per diem fee plus reimbursement of their actual, necessary and reasonable expenses incurred in the performance of their duties, consistent with policies established by the Administrative Office of the Courts." |
"(2) Unless the court orders or the parties otherwise agree, fees and expenses for the neutral shall be apportioned and paid in equal shares by each party, due and payable according to fee arrangements worked out directly by the parties and the neutral. Fees and expenses paid to the neutral shall be allowed and taxed as costs in accordance with Rule 54(f). If any party is unable to pay its share of the fees and expenses of the neutral, that party may apply for in forma pauperis status pursuant to Rule 91. If granted, the court may allocate the fee among those parties who are not in forma pauperis or ask the selected neutral to undertake the conference on a reduced fee basis. Failing the consent of the selected neutral to the reduced fee, the court will designate an alternate neutral from the roster developed by CADRES [Court Alternative Dispute Resolution Service] who will agree to undertake the assignment on a reduced fee basis or pro bono."
|Note that the statutes quoted in the left columns are applicable to general civil actions filed in Superior Court. Certain types of actions at the parties' election can be excluded by right from being referred to ADR processes (with a quick example being personal injury actions where the amount in controversy is $30,000 or less). There are also specialized mediation programs in Maine for specific types of actions--evictions, foreclosures, land use and environmental, etc.--that have their own statutory frameworks.|
For more information, see https://www.courts.maine.gov/programs/adr/cases.html, with some notable excerpts quoted here:
"In Family Matters, Small Claims, eviction and foreclosure cases, the parties pay a mediation fee to the court (unless the fee is waived), and the court pays the mediator. In civil cases in Superior Court, the parties pay the fee directly to the mediator."
Land Use and Environmental and Natural Gas Pipeline Cases: "A mediation fee of $175 is required. This pays for up to four (4) hours of mediation. There is no filing fee to open the case."
Small Claims Cases: "A mediator is usually present at the courthouse on the days small claims cases are heard. The mediator is provided by CADRES, and the mediator's fee is paid with the small claims court filing fee. There is no additional fee for small claims mediation on the day of mediation."
|Maryland||Please insert any comments you may have here.|
|Massachusetts||Mass. R. Sup. Jud. Ct. Rule 1:18 - Uniform Rules on Dispute Resolution - Rule 7(e)||Hybrid model similar to Colorado's with some court-annexed programs not providing for compensation and some providing for compensation after courts contract with ADR providers - "(e) Fees. Programs may charge fees for service. Parties shall not be charged a fee for attendance at a mandatory screening session or an early intervention event, or for dispute resolution services provided by court employees. Fees charged by a provider of court-connected dispute resolution services shall be approved by the Chief Justice of the applicable court department. The fee schedule shall provide for fee waived or reduced fee services to be made available to indigent and low income litigants. Fees may not be contingent upon the result of the dispute resolution process or the amount of the settlement. Neutrals may assist parties to negotiate an equitable allocation of fees."||From FREQUENTLY ASKED QUESTIONS REGARDING UNIFORM RULES ON DISPUTE RESOLUTION: "(17) Do the Uniform Rules regulate the fees charged by programs? Answer: Yes. Fees charged by providers of court-connected dispute resolution services must be approved by the chief justice of the Trial Court department in which the services are provided. The Boston Municipal Court, the District Court and the Juvenile Court Departments have not approved programs in their departments that charge fees to litigants. The services of approved programs in the Land Court, the Probate and Family Court and the Superior Court Departments are predominately fee based. Dispute resolution services by Housing Specialists in the Housing Court Department and dispute intervention by Probation Officers in the Probate and Family Court Department are "in-house" programs and do not charge fees to litigants. Parties may not be charged a fee for attendance at a mandatory screening session or an early intervention event, or for dispute resolution services provided by court employees. Provision is made for reduced fee or fee waivers in the case of indigent persons. In no case, may the fee for court connected dispute resolution services be made contingent on the outcome of the dispute resolution process."|
Observation: there do not appear to be any programs that work based on time thresholds/barriers. Either a program is free or there is compensation (i.e., no gray area or potential for time to be abused).
Also of interest: Trial Court List of Court-Connected Approved Programs for Alternative Dispute Resolution Services, located at: https://www.mass.gov/doc/the-trial-court-list-of-court-connected-approved-programs-for-alternative-dispute-resolution/download
|Michigan||Mich Court Rules Chap 2. Civil Procedure - Rule 2.411 Mediation - Rule 2.411(D)||"Reasonable Compensation" - Rule 2.411(D)(1) - "A mediator is entitled to reasonable compensation commensurate with the mediator's experience and usual charges for services performed."||Other Provisions of Interest: "(2) The costs of mediation shall be divided between the parties on a pro-rata basis unless otherwise agreed by the parties or ordered by the court. The mediator's fee shall be paid no later than: (a) 42 days after the mediation process is concluded, or (b) the entry of judgment, or (c) the dismissal of the action, whichever occurs first.|
(3) If acceptable to the mediator, the court may order an arrangement for the payment of the mediator's fee other than that provided in subrule (D)(2).
(4) The mediator's fee is deemed a cost of the action, and the court may make an appropriate order to enforce the payment of the fee.
(5) If a party objects to the total fee of the mediator, the matter may be scheduled before the trial judge for determination of the reasonableness of the fee."
|Minnesota||Please insert any comments you may have here.|
|Mississippi||Miss. Code Ann. § 25-7-35|
Mississippi Court-Annexed Rules for Civil Litigation IX. & XV.H.
|Arbitration: Reasonable Compensation Fixed by Court - "The court in which the cause is pending, or the chancellor or judge thereof in vacation, shall fix and allow reasonable compensation for commissioners, referees, auditors, and arbitrators; and such compensation shall be taxed and collected as costs in the suit."|
Mediation: Agreement of the Parties on a Reasonable Fee - "IX. COST OF MEDIATION - The fees and expenses of the mediation shall be established by agreement between the mediator and the parties charged with those fees and expenses. Unless otherwise agreed to by the parties or ordered by the court, the party seeking mediation shall pay the fees and expenses of the mediation. When mediation is ordered by the court on its own motion, the court shall allocate the fees and expenses of the mediation, or such fees and expenses may be taxed as costs of the litigation. The attorney's fees of the parties shall not be included in the fees and expenses of mediation."
"H. Fees: A Mediator shall fully Disclose and Explain the Basis of Compensation, Fees, and Charges to the Parties. The parties should be provided sufficient information about fees at the outset of a mediation to determine if they wish to retain the services of a mediator. If a mediator charges fees, the fees shall be reasonable, considering among other things, the mediation service, the type and complexity of the matter, the expertise of the mediator, the time required, and the rates customary in the community."
|Mississippi essentially follows the framework of the federal Alternative Dispute Resolution Act of 1998, namely that courts are empowered to set both arbitrator and mediator compensation as they see fit, but unlike the E.D.N.Y., N.D.N.Y., and W.D.N.Y., it would appear that reasonable compensation is left up to each individual judge as opposed to each individual court.|
|Missouri||Please insert any comments you may have here.|
|Montana||Please insert any comments you may have here.|
|Nebraska||Please insert any comments you may have here.|
|Nevada||Please insert any comments you may have here.|
|New Hampshire||Please insert any comments you may have here.|
|New Jersey||N.J. Ct. Rule 4:21-A-2(e) - Arbitration of Certain Civil Action: Compensation of Arbitrators|
N.J. Ct. Rule 1:40-4(b) - Complementary Dispute Resolution Programs: Compensation and Payment of Mediators Serving in the Civil and Family Economic Mediation Programs
Guidelines for the Compensation of Mediators (Appendix XXVI)
|For arbitration (which is mandatory in certain types of cases, including but not limited to personal injury cases), set per diem or hourly rates based upon whether arbitrators are assigned or are stipulated to by the parties - "(e) Compensation of Arbitrators. (1) Assigned Arbitrators. Except as provided by subparagraph (2) hereof, a single arbitrator designated by the civil division manager, including a retired judge not on recall, shall be paid a per diem fee of $ 350. Two-arbitrator panels shall be paid a total per diem fee of $ 450, to be divided evenly between the panel members. (2) Stipulated Arbitrators. Arbitrators stipulated to by the parties pursuant to R. 4:21A-2(a) shall be compensated at the rate of $ 70 per hour but not exceeding a maximum of $ 350 per day. If more than one stipulated arbitrator hears the matter, the fee shall be $ 70 per hour but not exceeding $ 450 per day, to be divided equally between or among them. The parties may, however, stipulate in writing to the payment of additional fees, such stipulation to specify the amount of the additional fees and the party or parties paying the additional fees."|
For mediation, two hours of free time divided between preparation, preliminary conference, and session time, all paid by the parties but "subject to court review and allocation to create equity" - "(b) Mediators on the court's Rosters of Civil and Family Mediators shall serve free for two hours in a mediation that is court-ordered. The two free hours shall be divided equally between (a) reasonable preparation time, administrative tasks, the organizational telephonic conference, and (b) an initial mediation session."
|The overall compensation scheme is not as simple as the excerpt in the left column might lead one to believe for mediation. For instance, with proper disclosures via a mediation agreement, preparation time in excess of one hour is compensable, as is detailed in the Guidelines for the Compensation of Mediators (Appendix XXVI), even before the initial mediation session takes place. per Guideline 15: "In a complex case, if the parties agree that it is reasonable that preparation, initial administration and the organizational telephone conference should exceed one hour, they may agree to compensate the mediator for such time in excess of one hour before an in-person mediation session is held." However, the same Guidelines also clearly provide for (and right "off the bat" in Guideline 1) a default of "no compensation whatsoever" or arguably even expenses, including but not limited to travel time and expenses: |
"Travel time may not be included as part of the free first two hours. Unless otherwise provided in these guidelines, no fee, retainer or other payment may be charged or paid prior to the conclusion of the two free hours."
Guideline 11 goes even further to require mediators to actually take losses on expenses that are typically paid to attorneys in litigation (unless they agree otherwise in advance with the parties): "11. Mediator's Expenses: Unless the parties otherwise agree in writing in advance following full disclosure, mediators may not charge for travel costs or time, use or rental of facilities, paralegal expenses, food, photocopying, postage, conference calls or other expenses. Note: The parties are responsible for the costs of the organizational conference call as provided in Guideline 6 above."
As such, New Jersey Court Rule 1:40-4(b) is one of the more complicated mediation compensation (or, arguably, anti-compensation) statutes in effectively incorporating the Guidelines for the Compensation of Mediators, which is referenced five times in its one paragraph of text, into it.
|New Mexico||Please insert any comments you may have here.|
|New York||No Enabling Legislation in Existence - See https://www.change.org/NY-ADR-Compensation |
See also the various articles at the bottom of this Table of State Neutral Compensation Statutes for
various perspectives from both NY-based and non-NY-based ADR professionals on the general need for neutral compensation.
|No compensation until time limits (ranging from 90 minutes to 3 hours) have been exceeded. Compare to E.D.N.Y. Local Civil Rules 83.7(b) and 83.8(f) and its new Trial Ready Rapid Mediation Pilot Program that provide for arbitrator compensation at a rate of "250.00 for their services in each case . . . by the courts" and mediator compensation at a rate of "$600.00 for the first four hours, and $250.00 per hour for each hour thereafter" by the parties but without any preparation time being compensable. |
Compare also to N.D.N.Y. (which appears to have only a mandatory mediation program) and W.D.N.Y. (which provides for arbitration as an available dispute resolution but does not set arbitrator compensation rates).
N.D.N.Y.: "Court approved hourly rates are $150 per hour for the first two hours of the initial mediation session. If necessary the mediator may charge an additional $150/hour for up to two hours of preparation time for cases which require substantial preparation. Thereafter, the rate is capped at $325 per hour." (https://www.nynd.uscourts.gov/adr-program). See also Section 4.4 of N.D.N.Y. General Order #47: Mandatory Mediation Program (at https://www.nynd.uscourts.gov/sites/nynd/files/general-ordes/GO47_0.pdf).
W.D.N.Y.: "Mediators shall receive $150/hour for the first two hours of the initial mediation session, without compensation for preparatory time. Thereafter, Mediators shall receive no more than their Court-approved hourly rates for time spent in mediation and for preparation authorized or reasonably anticipated by the parties or their counsel
between sessions. This subsection shall not apply to Mediators who are not selected from the Court’s Mediator Panel List." (Section 5.4 of W.D.N.Y. ADR Plan - Revised May 11, 2018).
The S.D.N.Y., which does not appear to have arbitration component, does not provide for mediator compensation (i.e., it is completely pro bono) and actively prohibits the receipt of any compensation. "All mediators shall serve without compensation and shall not solicit or accept payment for any case undertaken as a panel mediator." (S.D.N.Y. Mediation Procedure 16(c) (July 21, 2020)).
|NYC Market Standard (from "TIPS FOR BECOMING A MEDIATOR IN NYC"): "Average fees in New York City are $300 per hour for private mediations, whether in family, workplace or commercial cases. Attorney mediators and mediators who are in greater demand may charge more. Federal and other mediation rosters generally pay $500-$800 per case or $100-$200 per hour. Mediators may charge for all time spent on a case or only for time spent in session. Travel and other out of pocket fees are generally paid by the parties." (See https://www.jjay.cuny.edu/DRC/TIPS%20FOR%20BECOMING%20A%20MEDIATOR%20IN%20NYC) |
The "black sheep" position of the S.D.N.Y. with respect to neutral compensation (i.e., that court goes so far as to actively prohibit the receipt of any compensation) relative to the E.D.N.Y., N.D.N.Y., and W.D.N.Y. has been critcized as of 2018.
"Lawyers and judges expect to be paid for their work. Both the Western and Northern District rules require that mediators be paid, though they also require pro bono work so that parties who cannot afford to pay can also participate. The Eastern District program provides for limited compensation. The Southern District program has no compensation, and all mediators participating in the program work for free. This should change. The experience of the Western and Northern District programs is that lawyers and litigants quickly come to appreciate the benefits of the automatic court annexed referrals to mediation. Mediator cost, typically split between parties, is rarely a significant cost of the process. Given the amount of prep work, mediation work, and often follow up work required for a successful mediation, the courts should ensure that mediators in their programs are properly compensated."
Gary P. Shaffer, Automatic Court Annexed Mediation in New York’s Federal District Courts: Sometimes Numbers Don’t Lie at 9 (NYSBA 2018).
|North Carolina||Please insert any comments you may have here.|
|North Dakota||Please insert any comments you may have here.|
|Ohio||Please insert any comments you may have here.|
|Oklahoma||Please insert any comments you may have here.|
|Oregon||Please insert any comments you may have here.|
|Pennsylvania||Please insert any comments you may have here.|
|Rhode Island||Please insert any comments you may have here.|
|South Carolina||Please insert any comments you may have here.|
|South Dakota||Constitution Enables Court Rules: |
Article V, Sections 4 and 4A of the South Carolina Constitution grant the Chief Justice of the S.C. Supreme Court the power to administer the courts and make rules, provided that the latter are not rejected by at least 3/5 (60%) of the Members of the Houses of the S.C. General Assembly
S.C. Judicial Branch ADR Court Rule 9
|$200 Per Hour with One-Hour Prep Time Limit and Limited Expense Reimbursement Unless Indigent Status Is Granted - "Rule 9 - Compensation of Neutral: (a) By Agreement. When the parties stipulate the neutral, the parties and the neutral shall agree upon compensation. |
(b) By Appointment. When the mediator is appointed by the Clerk of Court pursuant to Rule 4(c), Rule 4(d)(2)(B), or Rule 4(d)(2)(C) of these rules, the mediator shall be compensated by the parties at a rate of $200 per hour, provided that the court-appointed mediator shall charge no greater than one hour of time in preparing for the initial ADR conference. Travel time shall not be compensated. Reimbursement of expenses to the mediator shall be limited to: (i) mileage costs accrued by the mediator for travel to and from the ADR conference at a per mile rate that is equal to the standard business mileage rate established by the Internal Revenue Service, as periodically adjusted; and (ii) reasonable costs advanced by the mediator on behalf of the parties to the ADR conference, not to exceed $150. An appointed mediator may charge no more than $200 for cancellation of an ADR conference.
(c) Payment of Compensation by the Parties. Unless otherwise agreed to by the parties or ordered by the court, fees and expenses for the ADR conference shall be paid in equal shares per party. Payment shall be due upon conclusion of the conference unless other prior arrangements have been made with the neutral, or unless a party's application for waiver has been granted by the court prior to mediation.
(d) Indigent Cases. Where a mediator has been appointed pursuant to paragraph (b), a party seeking to be exempted from the payment of neutral fees and expenses based on indigency shall file an application for indigency prior to the scheduling of the ADR conference. The application shall be filed on a form approved by the Supreme Court or its designee. Determination of indigency shall be in the discretion of the Chief Judge for Administrative Purposes or his designee. In cases where leave to proceed in forma pauperis has been granted, a party is exempt from payment of neutral fees and expenses, and no application is required to be filed."
|1) Section 63-3-530(A)(39) of South Carolina Code of Laws explicitly provides for the availability of ADR processes in family disputes. |
"(A) The family court has exclusive jurisdiction: . . . (39) to require the parties to engage in court-mandated mediation pursuant to Family Court Mediation Rules or to issue consent orders authorizing parties to engage in any form of alternate dispute resolution which does not violate the rules of the court or the laws of South Carolina . . . ."
2) Compensation for the mediation of probate disputes comes in at $175/hr. but with more prep. time than one hour allowed in the discretion of the Court.
"Rule 9(b). By Court Order - Mediation. . . . The mediator's rate shall not exceed $175 per hour. Reasonable charges by the mediator for his or her preparation time beyond one hour shall be permitted at the discretion of the Probate Court Judge. Reasonable expenses, including but not limited to travel expenses, shall be subject to reimbursement at the discretion of the Probate Court Judge. An appointed mediator may charge no more than $175 for cancellation of a mediation settlement conference."
|Tennessee||Please insert any comments you may have here.|
|Texas||Please insert any comments you may have here.|
|Utah||Please insert any comments you may have here.|
|Vermont||Constitution Enables Court Rules: |
"The Vermont Constitution (chapter 2; sections 30, 31, 36, and 37) gives the Supreme Court the power to administer the courts and to make rules." See https://www.vermontjudiciary.org/attorneys/rules
Civil Mediation: Vermont Rule of Civil Procedure 16.3(c)(1)
Vermont Superior Court Family Mediation Program: Vermont Rules for Family Proceedings Rule 18(d)(1)(B)
Probate/Surrogate's Court: Vermont Rules of Probate Procedure Rule 16.1(b)
|Civil Mediation (V.R.C.P.): Private Agreement - The parties and their mediator work out a fee but the Court can fee-shift mediation fees onto a non-prevailing party, thereby giving the parties an incentive to mediate - "(1) Fees and Expenses; Payment for Services; Taxation as Costs. (A) The fees and expenses of a mediator selected by the parties will be agreed upon by the parties and the mediator. (B) Each party must pay an equal share of the fees and expenses of any selected or designated mediator unless otherwise agreed or ordered. Any party that believes it is financially unable to pay the fee may file a motion with the court requesting that mediation not be required in the case. (C) If mediation under this rule does not result in settlement or other final disposition of the action, payments made to a mediator may be taxed as costs to the prevailing party in the discretion of the court."|
Family Mediation (V.R.F.P.): Court-subsidized mediation based upon party income - "(B) If the mediation cannot be conducted by a mediator chosen as provided in subparagraph (A) of this paragraph, the mediation will be conducted by an individual mediator from the Family Division Mediation Program's [which has an established sliding scale of fees] list of mediators, acceptable to the court and the parties. If the parties are not in agreement, the court may appoint a mediator from the Mediation Program list. If no mediator on the Mediation Program's list is available to conduct the mediation, the court may designate another mediator with credentials comparable to the minimum requirements for inclusion on the list, including domestic-violence training."
Probate/Surrogate's Court (V.R.P.P.): Court enabled to determine compensation - "The court shall have the discretion to establish the allocation of payment for the fees and expenses of mediation."
|The Vermont Superior Court Family Mediation Program offers court-subsidized, sliding scale mediation to participants based upon income. See https://www.vermontjudiciary.org/family/family-mediation-program/sliding-fee-scales. |
All Vermont mediation frameworks mentioned herein (Civil, Family, and Probate) provide for sanctions. V.R.C.P. 16.3(f) is illustrative: "(f) Sanctions. -- If a party, lawyer, or other person who is required to participate in a 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 expenses, including attorney's fees and costs, 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 unjust in the circumstances. (2) In addition, the court may 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 circumstances."
|Virginia||Title 20 - Domestic Relations - Chapter 6.1 - Custody and Visitation Arrangements for Minor Children - § 20-124.4. Mediation||$100 "Per Appointment" - "Any referral that includes both (i) custody or visitation and (ii) child or spousal support shall be considered two separate appointments."||Applies only to child custody cases|
|Washington||Please insert any comments you may have here.|
|West Virginia||Please insert any comments you may have here.|
|Wisconsin||Please insert any comments you may have here.|
|Wyoming||Wyoming Rules of Civil Procedure - Wyo. R. Prac. & P. 40(b)(D)||Agreement of the Parties - "(D) Fees and Costs. For those cases filed in court and assigned for settlement conference or mediation: (i) compensation for services shall be arranged by agreement between the parties and the person conducting the settlement conference or serving as the mediator, and (ii) that person's statement shall be paid within 30 days of receipt by the parties."||Incorporated within the state Rules of Civil Procedure (i.e., equivalent of a CPLR section in New York)|
1) Useful website for comparing mediator qualifications: https://legalstudiesms.com/learning/court-certified-mediator-qualification-requirements/.
Thank you, Nelson E. Timken, Esq., for the reference.
2) Another useful website for comparing state ADR court programs: https://www.aboutrsi.org/acrossus (Chicago-based Resolution Systems Institute)
3) Why "free time" compensation systems are intrinsically problematic -
|Quick Answers: the principles of effort justification (A1) and Gresham's Law (A2), fairness/equity (B1 and B2), the potential for abuse (C1 and C2), and |
minimization of diversity, especially where it comes to non-lawyer mediators and, on the other end of the ADR spectrum, AD2D Special Masters and
other appellate-level mediators (D). Link back to New York.
|(A1) PSYCHOLOGY: Kichaven, Jeff, International Risk Management Institute, Inc. (IRMI), "When It Comes to Mediators, You Get What You Pay For" (June 2004) - https://www.irmi.com/articles/expert-commentary/when-it-comes-to-mediators-you-get-what-you-pay-for|
|(A2) ECONOMICS: Parselle, Charles B., Mediate.com, "Gresham's Law: The Mediation Paradox" (March 2005) - |
|(B1) FAIRNESS: de Waal, Frans, TED Blog Video, "Two Monkeys Were Paid Unequally: Excerpt from Frans de Waal's TED Talk" (Apr. 4, 2013). |
(one of Dan Weitz's "crowd favorites" at his neuroscience and ADR lectures) - https://www.youtube.com/watch?v=meiU6TxysCg&t=0s
|(B2) FAIRNESS IN MULTI-PARTY CASES: How in any case where there are more than four parties with diverse needs and interests can any mediator be|
expected to fairly allocate all "free time" amongst the parties? Someone, as a matter of math, is going to be left holding the short end of the stick.
|(C1) POTENTIAL FOR MEDIATOR ABUSE: Pynchon, Victoria, "Success as a Mediator for Dummies" at 26 (2012) - |
(C2) A 2005 ANECDOTE OF MEDIATOR ABUSE: Phyllis G. Pollack, Southern California Mediation Association News,
"L.A. Courts Have Destroyed Intent of 'Pro Bono' Mediation" at 5 (Apr. - May 2005) - https://www.mediate.com/pdf/SCMANewsletter_june05%5B2%5D.pdf
(D) MINIMIZATION OF DIVERSITY: Kichaven, Jeff, The Resolver, "Message from the Section Chair" (Spring 2015) -
4) The Current State of Presumptive ADR in New York - Kiernan, John S., International Institute for Conflict Prevention and Resolution (CPR) Alternatives
to the High Cost of Litigation, "New York Presumptive ADR Experience Reflects Internal Buy-In Aided by Legal Profession Support" (May 2021) -
https://drive.google.com/file/d/1gdSHULR_EoiKyMM7pJRgyxfBWdvJegey/view?usp=sharing - Thanks to Jeff Kichaven, Esq. for sharing this.