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Local Court Rules: Rule 38

Rule 38. Mediation / ADR (Enacted and Effective 1/18/2000)

Purpose

The purpose of this rule is to promote the early resolution of civil cases, including

domestic relations cases, through mediation, mutually agreed upon binding arbitration and other forms of alternative dispute resolution (ADR). Nothing in this rule shall be construed to deny any person access to the courts or the right to a trial by jury as provided by law.

38.1 Mediation

The goal of mediation is to allow the parties to craft their own resolution of the dispute between them – not a solution forced on them by a judge, a lawyer or a mediator.

Mediation is a meeting where the parties and their legal representatives convene to discuss their respective case with a trained mediator who will assist the parties in attempting to settle their dispute. The mediator makes no binding ruling or decision. However, depending upon his or her style or approach to mediation, the mediator may or may not offer to give his or her opinion as to the appropriate or likely resolution of the case if it proceeded to trial. In any event, the parties settle only if they see fit to do so.

The joint sessions and separate private sessions between the mediator and the parties are confidential in that no one may testify or compel testimony about what occurred in the mediation process. Reference is made to Section 435.014 of the Missouri Revised Statutes and Missouri Supreme Court Rule 17 governing the scope of confidentiality in mediations, copies of which are available from the Clerk of court. The mediator shall not disclose the substance of any communications occurring in the mediation to any person outside of the mediation at any time.

38.2 Arbitration

Arbitration is an informal trial where the parties present their cases before a mutually-agreed upon person who is authorized by the parties to decide the dispute by a binding award. Chapter 435 of the Missouri Revised Statutes govern arbitrations in Missouri. The Court may not order a binding arbitration. However, pursuant to Missouri Supreme Court Rule 17, the Court may order non-binding arbitration.

38.3 Criteria For Court Ordered ADR

The Court will order mediation or other ADR procedures in any of the following circumstances:

(a) when all parties consent to participate,

(b) when one or more parties requests mediation or the court on its own motion orders ADR and either

(1) no timely objection is made by any party or

(2) despite a timely objection made by a party which has conferred with all other parties, the court issues an order setting forth compelling circumstances in favor of referring the matter to ADR.

38.4 Election Of The Mediator

The parties are ordered to confer among themselves and make a prompt and diligent effort to mutually agree upon the selection of any person as a mediator whose name appears on the court's list of mediators or who is currently serving as a circuit court judge or an associate circuit court judge other than the judge to whom the case has been assigned for trial or any other person who is mutually acceptable. Information concerning the training, experience, background, and fees of the mediators may be obtained from the civil court clerk.

If the parties are not able to agree on the selection of a mediator within 20 days of the court's order to mediate, the court shall refer the case for mediation to a person of its choice.

38.5 Conflicts Of Interest

Mediators and parties should be mindful of potential conflicts of interest, appearances of conflicts of interest or any other reason which would make it inappropriate for the mediator to conduct the mediation.

For example, if one of the parties is a past or present client of the mediator, is a past or present partner of the mediator, is a debtor or creditor of the mediator, is related by family to the mediator or had or otherwise has a relationship with the mediator which in all fairness should be revealed to all parties prior to the mediation, the mediator and the parties have a duty to make full and fair disclosure regarding all the circumstances of their relationship.

If the mediator is an attorney in a law firm, the mediator should make a conflicts check and undertake all other diligent efforts to determine if a conflict of interest exists between any of the participants in the mediation and the clients of the law firm.

The mediator is under a duty to respond to any questions by a party with respect to whether any such conflict or appearance of conflict exists. The parties have a duty to provide whatever information to the mediator reasonably in advance of the mediation is necessary to allow the mediator to make an independent determination if any such rounds exist for disqualification.

38.6 Cost Of The Mediation

A variety of ways exist for arranging for the payment of an agreed on court-ordered, privately-provided mediation as follows:

First, the parties may voluntarily agree to pay their share of the cost of the mediation equally.

Second, the parties may agree to pay their share of the cost of the mediation equally in the event the case settles at the mediation. If the case does not settle at the mediation, the parties may agree that either:

One party will pay a certain amount and that the remaining mediation costs will be paid by the other party, or

The defendant will pay the entire costs of the mediation but the plaintiff shall deliver a written statement granting to the defendant an offset in the amount equal to its share of the mediation costs to be applied against any future sums which defendant either agrees or is adjudged thereafter to pay to plaintiff, or

The parties agree to preliminarily pay their share of the costs of the mediation equally, subject to their agreement that the entire cost of the mediation shall be included as court costs to be charged against the non-prevailing party in such proportion as the court in its discretion may allocate.

38.7 Pre Mediation Discovery

While the intent of the program is to have mediation introduced at the earliest possible point in the litigation, parties may justifiably argue that some measure of discovery is necessary in order to make the mediation more productive. The court will exercise a high degree of flexibility with respect to these requests and will undertake to permit, where appropriate, a limited discovery program with the understanding that, if the case does not settle in mediation, additional discovery may be resumed after the mediation in the ordinary course.

As an initial matter, the Court may order the exchange of important, relevant documents, to the extent they are requested by the parties, reasonably in advance of the mediation.

In such cases whose subject matter or complexity warrant, the Court may issue orders which call for the exchange of experts' reports, the taking of experts' depositions and fact witness depositions and such other limited discovery as is reasonably necessary to enable the parties to adequately evaluate the case in advance of the mediation.

38.9 Scheduling Of The Mediation

The mediator is responsible for scheduling the mediation at a time and at a location which is reasonably convenient to all participants. If parties wish to use the facilities at the courthouse, arrangements should be made with the Court to reserve rooms as they become available.

38.10 Authority To Appear And Settle

A plaintiff suing in his individual capacity must attend the mediation accomplished by his or her attorney of record, if any. A plaintiff suing as a corporation or in any non-individual capacity must appear at the mediation through a person with full reasonable authority to settle the case, in addition to its counsel of record. If necessary, the representative should make arrangements in advance to be able to be in contact by telephone during the mediation with persons who have greater authority on behalf of the plaintiff.

A plaintiff who is not represented by counsel shall not be ordered to mediation unless the Court is satisfied that safeguards exist which are consistent with the fair administration of justice. For example, any settlement agreed to in a mediation between an unrepresented claimant and other parties who are represented will not be effective for a period of 20 days thereafter during which period the claimant will have an opportunity to confer with counsel and, if desired, repudiate the settlement in writing within that period without any penalty.

A defendant whose defense is being handled through an insurance company may appear in the mediation through a claims representative with full reasonable settlement authority, and the ability to contact by phone any person or committee having any greater settlement authority over the particular matter. An individual defendant whose defense is not being handled through an insurance company must be present personally accompanied by his or her counsel of record, if any. A corporate defendant or defendant other than an individual must appear at the mediation through a person, with full settlement authority in addition to its counsel of record, if any.

An individual defendant who is not represented by counsel or by an insurance company claims representative shall not be ordered to mediation unless the Court is satisfied that safeguards exist which are consistent with the fair administration of justice to the same extent as are applicable by this order to plaintiffs.

A party which is a governmental entity is required to appear through a representative with authority to settle the case or with authority to make a recommendation to the governmental office which has authority.

38.11 Conduct Of The Mediation

The parties are required to participate in the mediation for a duration of time set forth in the order of the Court. The number of parties, number of issues, complexity of the facts or the law, the financial capacity of the parties, whether a certain party has agreed to undertake the payment of costs and other factors will be taken into account by the Court in fixing the duration of the mediation. If no duration is specified in the order, the mediation shall be limited to two hours.

Thereafter, the mediation may be terminated by any party or its representative.

At any time, the mediation may be terminated by the mediator with or without cause and without any obligation to disclose the basis for terminating the mediation.

Participating in the mediation does not require the parties to make further changes in their respective negotiated positions.

38.12 Settlement Procedures

In the event parties are able to reach a settlement during the course of the mediation, the mediator will declare the mediation terminated following which the confidentiality law will not be applicable and the parties will reduce the material terms of the settlement to writing for execution by all parties in a non-confidential setting. Pursuant to Missouri Supreme Court Rule 17, settlements agreed upon as part of a court-ordered mediation must be in writing to be enforceable.

38.13 Reporting Of Results

The parties shall report to the Court within 5 days following the termination of the

mediation that the cases have settled or not. No further information about the mediation shall be conveyed to the Court by the parties or the mediator.

38.14 Notice of ADR Availability

Any summons in a non-domestic relations (DR) Circuit or Associate Division civil case filed after April 1, 2000, shall contain a notice that ADR is available to resolve the matter, and a similar notice shall be mailed by the clerk to each plaintiff.

A notice of ADR availability shall also be conspicuously displayed in any civil court clerk's office and the courthouse.

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