(a) Authorization for and Purpose of Mediation. Pursuant to 28 U.S.C. § 652, the court may require litigants in civil cases to consider the use of an alternative dispute resolution ("ADR") process. The court's primary ADR procedure is mediation facilitated by a private mediator chosen by the parties. The mediation process is intended to improve communication among the parties and provide the opportunity for greater litigant involvement in the earlier resolution of disputes, with the ultimate goal of securing the just, speedy, and inexpensive disposition of civil cases.
(1) Mediation. Mediation utilizes a neutral third party to facilitate discussions among the parties to help them find a mutually acceptable resolution of the case. The goal of the mediator, who may meet with the parties jointly and separately, is to help them identify their underlying interests, improve communication, and generate settlement options. A mediator may employ traditional facilitative strategies (aimed at solutions to problems underlying the litigation), evaluative strategies (designed to present the strengths and weaknesses of the case, or its relative value), or a combination of both approaches. In limited circumstances, the court may conduct the mediation.
(2) Other ADR Procedures. In appropriate cases, the court will facilitate other forms of ADR, as authorized by 28 U.S.C. §§ 654-658, including, but not limited to, early neutral evaluation, mini-trial, and arbitration.
(c) Referral of Cases to Mediation. Consistent with Fed. R. Civ. P. 16, the court will discuss ADR procedures at the scheduling conference. In most cases, the court will direct the parties, at the earliest appropriate opportunity, to mediate their dispute with a private mediator.
(1) Referral and Selection Process. The court may refer a case to mediation at any appropriate time. If the court orders mediation, the parties will jointly select the mediator. The parties may select any person to serve as mediator, and the person need not be included on the court-maintained list of mediators. Absent substantial countervailing considerations, the court will appoint the jointly-selected mediator. If the parties cannot agree on a mediator, the parties will submit their nominations to the court, who will select the mediator.
(2) Attendance at Mediation Session by Persons with Settlement Authority. Attendance by a party or its representative with settlement authority at the mediation is mandatory, unless the court orders otherwise. The purpose of this requirement is to have the party or representative who can settle the case present at the mediation. A unit or agency of government satisfies this attendance requirement if represented by a person who has, to the greatest extent feasible, authority to settle, and who is knowledgeable about the facts of the case, the governmental unit's position, and the procedures and policies under which the governmental unit decides whether to accept proposed settlements. The parties' attorney(s) responsible for resolution of the case must also be present.
(3) Notice to Interested Nonparties. Attorneys must coordinate with the mediator and identify any nonparties who have an interest in the case (including, but not limited to, primary and excess liability insurance carriers, subrogees, and lienholders). The attorneys must provide written notice to all interested nonparties informing them of the date and location of the mediation and that their participation is strongly encouraged. A copy of such notice must be provided to all parties and the mediator.
(d) List of Mediators. The ADR administrator will maintain a list of mediators who have expressed a desire to mediate cases pending in this court and have complied with the requirements of this paragraph.
(2) Placement on the List of Mediators. All applicants must complete the required application form. The ADR administrator will review the applications and place applicants meeting the minimum requirements on a list of mediators. Being on the list of mediators is not an indication a person is an effective mediator, and no certification results by placement on the list. The list serves as a resource of persons who offer mediation services and appear to meet the court's minimum requirements.
(3) Evaluation. The ADR administrator is authorized to develop an evaluation program to evaluate the mediation services of private mediators. Any comments or complaints concerning mediators on the list should be made to the ADR administrator.
(e) Compensation of Private Mediators. Except when serving pro bono, private mediators must be compensated at the rate negotiated by the attorneys and the mediator. The fee must be divided by agreement of the parties or as ordered by the court.
(g) Required Disclosures by Mediator. The mediator must immediately disclose to the parties the relevant facts giving rise to any potential conflict of interest, including, but not limited to, the following:
(9) the mediator (directly or as a fiduciary), the mediator's spouse, or any of the mediator's minor children who live with the mediator have a financial interest in the case or in any party to the case.
(h) Withdrawal. If a party requests the mediator to withdraw because of the disclosures made pursuant to paragraph (g) above, the mediator must withdraw, and the parties must agree on another mediator.
(i) Confidentiality. Except as provided in paragraph (j) below, this court, the mediator, all attorneys, the parties, and any other persons involved in the mediation must treat as "confidential information" the contents of written mediation statements, anything that happened or was said, any position taken, and any view of the merits of the case formed by any participant in connection with any mediation. "Confidential information" must not be:
(3) discoverable or subject to compulsory process or used for any purpose, except as provided in paragraph (j) below, in any pending or future proceeding in any court unless a court determines that such testimony or disclosure is necessary to:
(C) prevent harm to the public health or safety,of such magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential.
(2) disclosure of an agreement, by all parties to the agreement, which appears to constitute a settlement contract, if necessary in proceedings to determine the existence of a binding settlement contract;
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As amended 3/05 (formerly D.Kan.S.O. 04-1 and 03-6), 4/8/99, 2/28/97, 2/3/95.