Chapter 43a

7 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 1 CHAPTER 43A GUAM MEDIATION CHAPTER SOURCE: Chapter 43A added by P.L. 27-081:6 (April 30, 200 4), and became effective upon enactment. In light of the creation of a new Chapter 43A, the sections were renumbered by the Compiler. Article 1. Mediation. Article 2. Evidence. Article 3. Termination. Article 4. Costs/Termination. Article 5. Mediator and Miscellaneous Provisions. ARTICLE 1 MEDIATION § 43A101. Short Title. § 43A102. Definitions. § 43A103. Validity, Irrevocability and Enforcement of Agreements to Mediate. § 43A104. Conduct of Proceedings; Criteria; Other C odes. § 43A105. Representation. § 43A106. Agreement to Stay Judicial or Arbitral Pr oceedings; Time Period. § 43A107. Limitations: Tolling. § 43A108. Nonwaiver of Rights or Remedies by Submis sion to Mediation. § 43A101. Short Title. This Chapter 43A shall be known as and may be cited as the Guam Mediation Chapter. § 43A102. Definitions. For purposes of this Chapter 43A, the following ter ms apply: (a) Mediation means a process in which a neutral person or persons facilitate communication between the disput ants to assist them in reaching a mutually acceptable agreement.

following ter ms apply: (a) Mediation means a process in which a neutral person or persons facilitate communication between the disput ants to assist them in reaching a mutually acceptable agreement. (b) Mediator means a neutral person who conducts a medi ation. Mediator includes any person designated by a mediat or either to assist COL4120147 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 2 in the mediation or to communicate with the partici pants in preparation for a mediation. (c) Mediation consultation means a communication betwee n a person and a mediator for the purpose of initiating , considering, or reconvening a mediation or retaining the mediator. (d) Writing means handwriting, typewriting, printing, photostatting, photographing, photocopying, transmi tting by electronic mail or facsimile, and every other means of recordi ng upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination s thereof, and any record thereby created, regardless of the manner in which the record has been stored. § 43A103. Validity, Irrevocability and Enforcement of Agreements to Mediate.

s, or combination s thereof, and any record thereby created, regardless of the manner in which the record has been stored. § 43A103. Validity, Irrevocability and Enforcement of Agreements to Mediate. An agreement in a writing to settle a controversy b y mediation shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. § 43A104. Conduct of Proceedings; Criteria; Other Codes. The mediator or mediators may conduct the mediation proceedings in such a manner as they consider appropriate. Except as otherwise provided in this Chapter 43A, other provisions of this Code, th e Guam Rules of Evidence (Title 6 of the Guam Code Annotated), or t he Guam Rules of Court (Title 7, Appendix A of the Guam Code Annotat ed), shall not apply to mediation consultations. § 43A105. Representation. The parties may appear in person or be represented or assisted by any person of their choice. A person assisting or repr esenting a party need not be a member of the legal profession or licensed to pra ctice law in Guam. § 43A106. Agreement to Stay Judicial or Arbitral P roceedings; Time Period.

erson assisting or repr esenting a party need not be a member of the legal profession or licensed to pra ctice law in Guam. § 43A106. Agreement to Stay Judicial or Arbitral P roceedings; Time Period. Unless otherwise agreed by the parties, the agreeme nt to submit a dispute to mediation shall be deemed an agreement b etween or among those parties to stay all judicial or arbitral proceeding s from the commencement of mediation until the termination of mediation procee dings, provided, however, that nothing in this Section shall prevent a party to a mediation COL4120147 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 3 from pursuing injunctive or other temporary relief during the course of the mediation. § 43A107. Limitations; Tolling. All applicable limitation periods, including period s of prescription, shall be tolled or extended upon the commencement o f mediation proceedings to mediate a dispute under this Chapter 43A and all limitation periods shall remain tolled and periods of prescrip tion extended as to all parties to the mediation proceedings until the tent h (10th) day following the termination of mediation proceedings.

tation periods shall remain tolled and periods of prescrip tion extended as to all parties to the mediation proceedings until the tent h (10th) day following the termination of mediation proceedings. For purposes of this Section, mediation proceedings are deemed to have commenced as soon as (a) a party has requested mediation of a particular dispute or disputes, and (b) the other party or parties agree to participate in the mediation proceeding. § 43A108. Nonwaiver of Rights or Remedies by Submi ssion to Mediation. By submitting to mediation, no party shall be deeme d to have waived any rights or remedies which that party would have had if mediation had not been initiated, other than those set forth in any m ediation settlement agreement which results from the mediation or as ot herwise prescribed in this Chapter 43A. ---------- ARTICLE 2 EVIDENCE § 43A201. Admissibility of Evidence: Nondisclosure ; Exception. § 43A202. Mediator’s Writings. § 43A203. Otherwise Admissible Evidence. § 43A204. Protections Before and After Mediation En ds. § 43A201. Admissibility of Evidence; Nondisclosure ; Exception.

eption. § 43A202. Mediator’s Writings. § 43A203. Otherwise Admissible Evidence. § 43A204. Protections Before and After Mediation En ds. § 43A201. Admissibility of Evidence; Nondisclosure ; Exception. When persons agree to participate in mediation unde r this Chapter 43A: (a) Evidence of anything said or of any admission made in the course of the mediation is not admissible in eviden ce, and disclosure of any such evidence shall not be compelled, in any ci vil or criminal COL4120147 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 4 action in which, pursuant to law, testimony may be compelled to be given. However, this Subsection does not limit the admissibility of evidence if all parties participating in mediation consent to its disclosure; (b) In the event that any such evidence is offered in c ontravention of this Section, the arbitration tribunal or the co urt shall make any order which it considers to be appropriate to deal with t he matter, including, without limitation, orders restricting the introduc tion of evidence, or dismissing the case without prejudice; and (c) Unless the document otherwise provides, no document prepared for the purpose of, or in the course of or pursuant

cting the introduc tion of evidence, or dismissing the case without prejudice; and (c) Unless the document otherwise provides, no document prepared for the purpose of, or in the course of or pursuant to, the mediation, nor any copy thereof, is admissible in e vidence, and disclosure of any such document shall not be compel led in any arbitration or civil action in which, pursuant to l aw, testimony may be compelled to be given. § 43A202. Mediator’s Writings. (a) Any writing produced by the mediator shall not be d isclosed to the parties, the public, or anyone other than the media tor, unless all parties to the mediation expressly agree otherwise in writing, or disclosure of the writing is otherwise mandated by court rule, local rule or oth er law. (b) Neither a mediator nor anyone else may submit to a Court or other adjudicative body, and a court or other adjudicativ e body may not consider, any writing by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by c ourt rule, local rule or other law, unless all parties to the mediation expr essly agree otherwise in writing. § 43A203. Otherwise Admissible Evidence.

ator, other than a report that is mandated by c ourt rule, local rule or other law, unless all parties to the mediation expr essly agree otherwise in writing. § 43A203. Otherwise Admissible Evidence. (a) Evidence otherwise admissible or subject to dis covery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its i ntroduction or use in a mediation or a mediation consultation. (b) This Section does not limit any of the followin g: (1) the admissibility of an agreement to mediate a dispute; (2) the effect of an agreement not to take a defaul t or an agreement to extend the time within which to act or refrain from acting COL4120147 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 5 in a pending civil action; or (3) disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in a dispute. § 43A204. Protections Before and After Mediation E nds. Anything said, any admission made, or any writing t hat is inadmissible, protected from disclosure, and confidential under t his Chapter 43A before a mediation ends, shall remain inadmissible, protecte d

hing said, any admission made, or any writing t hat is inadmissible, protected from disclosure, and confidential under t his Chapter 43A before a mediation ends, shall remain inadmissible, protecte d from disclosure, and confidential to the same extent after the mediation ends. ---------- ARTICLE 3 TERMINATION § 43A301. Termination Circumstances. § 43A302. Termination-Particular Parties. § 43A301. Termination Circumstances. The mediation proceedings may be terminated as to a ll parties by any of the following: (a) A written declaration of the mediator or mediators, after consultation with the parties, to the effect that f urther efforts at mediation are no longer justified, on the date of t he declaration. (b) A written declaration of the parties addressed to t he mediator or mediators to the effect that the mediation proce edings are terminated, on the date of the declaration. (c) The signing of a mediation settlement agreement by all of the parties, on the date of the agreement. § 43A302. Termination-Particular Parties. The mediation proceedings may be terminated as to p articular parties by either of the following: (a) A written declaration of a party to the other party and the

A302. Termination-Particular Parties. The mediation proceedings may be terminated as to p articular parties by either of the following: (a) A written declaration of a party to the other party and the mediator or mediators, if appointed, to the effect that the mediation proceedings shall be terminated as to that particul ar party, on the date of the declaration. COL4120147 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 6 (b) The signing of a mediation settlement agreemen t by some of the parties, on the date of the agreement. 2013 NOTE: Subsection designation (b) was added to adhere to the Compiler’s alpha-numeric scheme in accordance to the authority granted by 1 GCA § 1606. ---------- ARTICLE 4 COSTS /T ERMINATION § 43A401. Mediation Costs; Inclusions. § 43A402. Equality of Costs Among Parties; Expenses . § 43A403. Enforcement of Mediation Settlement After Termination of Mediation. § 43A401. Mediation Costs; Inclusions. Subject to any contrary agreement between or among the parties, upon termination of the mediation proceedings, the media tor shall fix the costs of the mediation and give written notice thereof to th e parties.

any contrary agreement between or among the parties, upon termination of the mediation proceedings, the media tor shall fix the costs of the mediation and give written notice thereof to th e parties. As used in this Section, ‘costs’ includes only the following: (a) A reasonable fee to be paid to the mediator or medi ators. (b) The travel and other reasonable expenses of the med iator or mediators. (c) The travel and other reasonable expenses of witness es requested by the mediator or mediators with the con sent of the parties. (d) The cost of any expert advice requested by the medi ator or mediators with the consent of the parties. (e) The costs of any court or other institution’s admin istration of the mediation. § 43A402. Equality of Costs Among Parties; Expense s. Subject to any contrary agreement between or among the parties, the costs referred to in § 43401 shall be borne equally by the parties. All other expenses incurred by a party shall be borne by that party. § 43A403. Enforcement of Mediation Settlement After Termination of Mediation. (a) Any party to a mediation settlement agreement a s described in §§ COL4120147 GCA CIVIL PROCEDURE CH.

e by that party. § 43A403. Enforcement of Mediation Settlement After Termination of Mediation. (a) Any party to a mediation settlement agreement a s described in §§ COL4120147 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 7 43A301(c) and 43A302(b) above, may enforce that me diation settlement agreement at the Superior Court of Guam by filing a motion for summary judgment without filing a complaint, by serving the other party or parties to that mediation settlement agreement with: (1) a summons, (2) a copy of the signed mediation settlement agreement , and (3) a notice of motion for summary judgment and the sup porting papers. (b) The summons served under Subsection (a) (1) of this Section shall require the defendant to submit answering pap ers on the motion within the time provided in the notice of motion. The min imum time such motion shall be noticed to be heard is thirty days after s ervice. If the plaintiff sets the hearing date of the motion later than thirty da ys, the plaintiff may require the defendant to serve a copy of defendant’s answer ing papers upon the plaintiff within such extended period of time, not exceeding ten days, prior to such hearing date.

s, the plaintiff may require the defendant to serve a copy of defendant’s answer ing papers upon the plaintiff within such extended period of time, not exceeding ten days, prior to such hearing date. (c) No default judgment may be entered pursuant to Guam Rule of Civil Procedure 55(a) prior to the hearing date of the motion. If the motion is denied, the moving and answering papers shall be de emed the complaint and answer, respectively, unless the court orders other wise. (d) Both the summons and the motion for summary judgmen t referred to in Subsections (a) (1) and (3) must be created i n accordance with the applicable Guam Rules of Civil Procedure. (e) The purpose of this Section is to encourage mediati on and to expedite the enforcement of mediated settlement agr eements by allowing a party or parties to move for summary judgment in li eu of filing a complaint. (f) Nothing in this Section should be interpreted to re strict the rights of the parties to enforce the mediation settlement agr eement in any way or other manner permitted under the laws of Guam. ---------- ARTICLE 5 MEDIATOR AND MISCELLANEOUS PROVISIONS § 43A501.

rights of the parties to enforce the mediation settlement agr eement in any way or other manner permitted under the laws of Guam. ---------- ARTICLE 5 MEDIATOR AND MISCELLANEOUS PROVISIONS § 43A501. Mediator as Arbitrator: Ineligibility for Appointment; Exception. COL4120147 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 8 § 43A502. Costs for Seeking to Compel Mediator. § 43A503. No Consent to Court Jurisdiction Upon Fai lure of Mediation. § 43A504. Service of Process; Immunity of Participa nts in Mediation. § 43A505. Action for Damages; Nonliability of Media tors. § 43A506. Conflicts/Superiority Provision. § 43A507. Ethical and Training Standards for Mediat ors. § 43A501. Mediator as Arbitrator; Ineligibility fo r Appointment; Exception. No person who has served as mediator may act as an arbitrator or as a representative or counsel of a party in any arbitra l or judicial proceedings with respect to a dispute that is the subject of th e mediation proceedings. No person who has served as a mediator may be a witnes s in any such arbitral or judicial proceedings. § 43A502. Costs for Seeking to Compel Mediator.

at is the subject of th e mediation proceedings. No person who has served as a mediator may be a witnes s in any such arbitral or judicial proceedings. § 43A502. Costs for Seeking to Compel Mediator. If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a writing as defined in § 43A102(d), and the court or other adjudicative body determines that the testimony or writing is inadmissible under this Chapter 43A, or protected from disclosur e under this Chapter 43A, the court or adjudicative body making the dete rmination shall award reasonable attorney's fees and costs to the m ediator against the person seeking the testimony or writing. § 43A503.No Consent to Court Jurisdiction Upon Fail ure of Mediation. Neither the request for mediation, the consent to p articipate in the mediation proceedings, the participation in such pr oceedings, nor the entering into a mediation agreement or settlement s hall be deemed as consent to the jurisdiction of any court in Guam in the event mediation fails. § 43A504. Service of Process; Immunity of Particip ants in Mediation.

iation agreement or settlement s hall be deemed as consent to the jurisdiction of any court in Guam in the event mediation fails. § 43A504. Service of Process; Immunity of Particip ants in Mediation. Neither the mediator or mediators, the parties, nor their representatives shall be subject to service of process on any civil matter while they are present in Guam for the purpose of arranging for or participating in the mediation pursuant to this Chapter 43A. § 43A505. Action for Damages; Nonliability of Medi ators. (a) A mediator, and those acting pursuant to the order or rules of the mediator as his or her employees or agents, shall n ot be held liable for any COL4120147 GCA CIVIL PROCEDURE CH. 43A GUAM MEDIATION 9 action performed or omission made in the course of their official duties undertaken pursuant to this Chapter 43A. (b) The institution which administers the mediation sha ll not be liable for any action performed or omission made in connec tion with any mediation, unless the action performed or omission made is committed with reckless disregard with respect to the rights of on e or more of the parties. § 43A506. Conflicts/Superiority Provision.

any mediation, unless the action performed or omission made is committed with reckless disregard with respect to the rights of on e or more of the parties. § 43A506. Conflicts/Superiority Provision. In the event that any provision of this Chapter 43A conflicts with the provisions of any other Title, Chapter or Section o f the Guam Code Annotated, the provisions of this Chapter 43A shall be controlling. § 43A507. Ethical and Training Standards for Media tors. A person serving as a mediator shall comply with th e Ethical and Training Standards for Neutrals adopted by the Supr eme Court of Guam pursuant to Section 42A309. ---------- COL412014