Rule 83.7 Alternative Dispute Resolution.
(A) Introduction and Purpose. Alternate dispute resolution [ADR], when supported by the bench and bar, and utilizing properly trained neutrals in a program adequately administered by the court, has the potential to provide a variety of benefits, including greater satisfaction of the parties, innovative methods of resolving disputes, and greater efficiency in achieving settlements. The United States District Courts for the Northern and Southern Districts of Mississippi developed these rules in order to implement the Alternative Dispute Resolution Plan [hereinafter, the Plan] mandated by the Alternative Dispute Resolution (ADR) Act of 1998, 28 U.S.C. § 651, et seq. The Plan is designed to provide access to modern ADR settlement techniques and to encourage mutually satisfactory resolutions of disputes in all stages of litigation.
(B) Administration of ADR Plan. The chief judge of each district shall designate a judicial officer, who is knowledgeable in alternative dispute resolution practices and processes to implement, administer, oversee, and evaluate the ADR plan. The ADR judges shall be responsible for recruiting and screening attorneys to serve as an ADR neutral. In addition, the ADR judges may from time to time solicit recommendations from state and federal bar associations, committees and organizations interested in ADR, regarding ADR programs and efficient methods of coordinating ADR resources in the state and federal courts.
(1) The courts have determined that mediation is the alternative dispute resolution process that best serves the needs of litigants and their attorneys in the timely and efficient resolution of cases. However, nothing in these rules shall prevent the parties from voluntarily engaging in other forms of ADR, such as arbitration, early neutral evaluation, mini-trial, or other appropriate ADR processes.
(2) Definition. Mediation is a process in which impartial and neutral persons assist parties in reaching agreed settlements. Mediators facilitate communications between the parties and assist them in their negotiations. When appropriate, mediators may also offer objective evaluations of cases and may make settlement recommendations.
(D) Cases Appropriate for Referral to Mediation.
(1) Discretion of Court. The determination of whether a matter should be referred for mediation is addressed to the sound discretion of the judicial officer assigned to the case.
(2) Actions Exempted from Consideration for ADR. The following categories of proceedings are exempt from consideration for ADR: an action for review on an administrative record; a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence; and, an action brought without counsel by a person in custody of the United States, a state, or a state subdivision.
(1) A judicial officer may refer a case to mediation on his or her own motion.
(2) If the court determines that a case is appropriate for referral to mediation, the court shall enter an order directing the parties to schedule and complete a mediation conference as set forth in these rules within such time frame as the court may specify. Within ten days of the entry of the order of referral, a party may file a written objection to the referral order, stating concisely the reasons the case should not be referred for mediation; copies of the objection shall be served on all parties. The court may rule on any objection without a hearing or, in its discretion, may conduct a hearing either in person or by telephone.
(3) A party may request that a case be referred to mediation. The request shall be made by motion addressed to the magistrate judge assigned to the case and shall be determined according to the procedures for non-dispositive motions set forth in Rule 7.2 of the Uniform Local Rules.
(4) The order of referral shall state a time period within which the mediation shall be completed.
(5) A court may not order a case to mediation more than one time except upon a showing of exceptional circumstances or upon the request of all parties.
(6) Upon the court's entry of an order referring the case to mediation, and upon all objections having been disposed of by the court, the parties shall have a period of twenty days from the date of entry of the court's final order to schedule the mediation. If the parties are unable to schedule the mediation within the twenty-day period or to agree on a date and/or a mediator, the court shall assign a mediator and shall order the date, time, and place for the mediation, which shall be binding on the parties.
(1) The mediator will submit to the parties a list of required pre-mediation documents and agreements at least ten days prior to the scheduled date for mediation. All objections to pre-mediation documents shall be addressed to the mediator not less than five days prior to the scheduled date and a mediation agreement shall be entered prior to commencement of mediation.
(2) If pre-mediation documents are not furnished within five days of the scheduled mediation, any party and/or the mediator may apply to the court, which shall determine the disputed terms and conditions of the mediation.
(3) Failure to reasonably agree to the pre-mediation agreements and/or to timely raise objections to pre-mediation agreement which delays or encumbers the mediation process will be considered a failure to comply with the order of referral and the mediator and/or parties shall report such failure to the court. The court may enter such remedial orders as it deems appropriate.
(1) Appearance at Mediation. Counsel, including lead trial counsel, for all parties must appear at the mediation unless otherwise ordered by the court.
(2) Attendance of Parties. All individual parties must appear in person at the mediation unless excused in advance by the court. Representatives of corporate parties, organizations, or other entities must also appear at the mediation or be available by telephone, as the mediator may direct, throughout the entire mediation. Office closings and time zone differences do not excuse a company representative from continued participation in a mediation under this rule. Each party representative must have full authority to settle the case.
(H) Sanctions. If a party, or party representative, or attorney fails to appear or be available as provided by these rules at a scheduled mediation, or if a party, or party representative, or attorney is substantially unprepared to participate in the mediation, or if a party, party representative, or attorney fails to participate in good faith during a mediation session, a judge, upon motion or upon the judge's own initiative, may impose appropriate sanctions including attorneys' fees and reasonable expenses incurred.
(1) Court-Appointed Federal Panels. The courts shall establish panels of neutrals to assist with the ADR and settlement programs. Panel members shall consist of persons who by experience, training, and character appear qualified to serve in one or more of the processes provided for in these rules. Appointment to a panel means that the neutral has met the minimum qualifications, training, and experience requirements. The court will maintain a roster of qualified neutrals. Any person whose name appears on the panel roster may ask at any time to have his or her name removed or, if selected to serve, decline to serve at that time but remain on the roster. The courts shall appoint panel members in such numbers as may be appropriate and may, for good cause shown, withdraw an appointment. Comments or complaints concerning panel members shall be made to the ADR judges.
(2) Use of Non-Panel Neutrals. Upon proper application, the judicial officer assigned to the case may appoint to a specific case non-panel members who are otherwise qualified with expertise in particular substantive fields or have expertise in a specific dispute resolution process.
(3) Qualifications and Training. Each lawyer serving as an ADR panel member shall be admitted to the practice of law for at least five years and be a member in good standing with the bar of the appointing court or be a member of the faculty of an accredited law school. All panel members shall be determined by the court to be competent to perform the specific program duties. All panel members shall be knowledgeable about civil litigation in federal court and shall have strong mediation or other ADR skills. Panel members shall have successfully completed such training and other experience requirements as the courts may require.
(4) Oath of Panel Members. Every panel member serving under these rules shall take the oath or affirmation prescribed by 28 U.S.C. § 453 upon qualification and confirmation of appointment.
(5) Immunity. Panel members or others authorized to serve in a specific case are performing quasi-judicial functions and are entitled to the immunities and protections that the law accords to persons serving in such capacity.
(6) Codes of Ethics and Standards of Conduct. Any neutral serving under these rules shall be subject to all codes of ethics and standards of conduct set by statute, by the Judicial Conference of the United States, and by other professional organizations to which the neutral may belong and or that may be approved or adopted by the court.
(1) Parties to Confer. Unless otherwise ordered, the parties must confer in good faith and attempt to agree on a neutral. Before nominating a neutral, the parties must have confirmed the neutral's availability and willingness to serve within the time frame proposed.
(a) Appointment of the Neutral When Parties Agree. If the parties agree on a neutral and confirm the neutral's availability, the parties must identify the nominee in the proposed order submitted to the court. Absent substantial countervailing considerations, the judicial officer assigned to the case will appoint the neutral whom the parties have jointly nominated and who is willing to serve.
(b) Appointment of a Neutral When Parties Disagree. If the parties cannot agree on a neutral, they shall so advise the court. Upon being so advised, the judicial officer assigned to the case will select an available neutral from the panel and enter an order of referral.
(2) Documents provided by the Court to the Neutral. Promptly after the neutral is designated, the court shall provide the neutral with a copy of the order of referral.
(3) Disqualification of Neutrals. No person may serve as a neutral in a mediation in violation of:
(a) the standards set forth in 28 U.S.C. § 455; or
(b) any applicable standard of professional responsibility or rule of professional conduct; or
(c) any additional standards adopted by the court; or
(d) the neutral discovers a circumstance requiring disqualification and immediately submits to the parties and to the court a written notice of recusal.
(e) The parties may not waive a basis for disqualification described in 28 U.S.C. § 455(b).
(4) Proposed Order of Referral.
(a) File with Proposed Scheduling Order. If the parties recommend mediation, counsel must prepare a proposed order of referral for submission to the court.
(b) Contents of Proposed Order. The proposed order of referral must:
(i) state that mediation is appropriate for the case;
(ii) identify by name the available neutral whom the parties nominate to mediate the case;
(iii) specify the time frame within which the parties propose that the mediation will be completed and the date by which the neutral must file written confirmation of that completion; and
(iv) suggest and explain any modifications or additions to the case management and scheduling order that would be advisable because of the reference to mediation.
(5) Neutral's Post-Mediation Report to Court. Within ten days of the completion of a mediation conducted pursuant to this rule, the neutral shall submit to the referring judge a written report stating whether the case was resolved by mediation.
(K) Confidentiality of Proceedings.
(1) General Rule of Confidentiality. Except as otherwise provided in these rules or required by law, all communications made in connection with mediation proceedings under these rules shall be confidential. Mediation-related communications shall not be subject to disclosure and may not be used as evidence against any participant in any judicial or administrative proceeding.
(2) No Compelled Disclosure. A party, a party's attorney, a party's representative, and the neutral may not be compelled to testify in any proceedings related to matters occurring during a mediation under these rules. A party, a party's attorney, a party's representative, and the neutral may not be subject to process requiring disclosure of confidential information or data related to a mediation conducted under these rules.
(3) Limitations on Communications with Court. A person participating in a mediation under these rules may not be compelled to disclose to the court any communication made, position taken, or opinion formed by any party or neutral in connection with mediation proceedings.
(4) Exception to the General Rule of Confidentiality. The only event that may make it appropriate for either the neutral or either of the parties to disclose a confidential communication arising from proceedings governed by these rules is a finding by the court that such testimony or other disclosure is necessary to:
(a) prevent a manifest injustice;
(b) help establish a violation of law; or,
(c) prevent harm to the public health or safety.
(1) In General. Unless otherwise established by statute, directed by the court, or unless proceeding pro bono, neutrals may charge reasonable fees and charges for services and expenses. The cost of the neutral's services shall be shared equally by all parties, unless otherwise agreed by counsel or as ordered by the court.
(2) Pro Bono Service. Each panel member must serve pro bono at least once per year if requested by the parties in an appropriate case or if requested or ordered by the court. Panel members may perform other pro bono service as may be appropriate.
(M) Effective Date. The mediation procedures set forth in these Rules shall become effective on December 1, 2000. From and after the effective date, these Rules shall apply in all civil cases whether pending before or filed subsequent to the effective date hereof.
Procedures for Appointment of
Neutrals to Panel
1. Neutral Application Forms, with copies of the Local Rules and Orders relating to Neutrals, and Qualification of Neutrals, are available at the clerk of courts' offices.
2. Completed applications for membership on the panels of neutrals are to be returned to:
Clerk, United States District Court
Southern District of Mississippi
245 East Capitol Street, Suite 316
Jackson, Mississippi 39201
or
Clerk, United States District Court
Northern District of Mississippi
911 Jackson Avenue, Suite 369
Oxford, Mississippi 38655
3. Applications will be forwarded by the clerk of the
court to the appropriate ADR judges for review and recommendation to the court. The ADR
judges will screen all applications to ensure proper application completion. The ADR
judges may convene when necessary to review pending applications and may recommend
approval, reject applications, or request additional information from applicants. The ADR
judges will recommend to the court for final approval applicants who meet the eligibility,
qualification, training, and experience requirements stated in the Local Rules and
Standing Orders regarding Neutrals.
4. Upon final approval by the court, an order of appointment will be filed and the clerk of the court will notify the neutral of panel membership.
5. The clerks of the court will maintain a register of approved neutrals. The register will include the pertinent data from the neutrals' applications, including years of practice, areas of experience and expertise, degrees, training experience, and other similar credentials, and a copy of the neutrals's signed oaths. The register of neutrals shall be available for public inspection in the clerks' offices.