Eastern District of Missouri
Updated Aug. 10, 2000.
Portions of this court's information were updated since publication of the manual and differ from the printed version.
IN BRIEF
Process summary
Mediation.
In the Eastern District of Missouri, the CJRA plan, effective January 1, 1994, and the court's General Order Pertaining to Alternative Dispute Resolution Procedures authorize mediation for most civil actions. See below.
Early neutral evaluation (ENE).
Under the court's CJRA plan and its General Order Pertaining to Alternative Dispute Resolution Procedures, a judge may refer any civil case to early neutral evaluation. See below.
Other ADR.
The court has used special masters for settlement in appropriate cases.
Judicial settlement conferences.
On an ad hoc basis, the judges refer cases to settlement conferences.
Of note
Obligations of counsel.
Attorneys must familiarize themselves with the court's ADR programs and be prepared to discuss ADR options with the judge. They must also discuss in the case management statement whether ADR is suitable for their case.
Information from court.
The court encourages attorneys to familiarize themselves with its General Order Pertaining to Alternative Dispute Resolution Procedures. The court also provides an ADR procedures manual.
For more information
Sherry Compton, DCM/ADR Coordinator, 314-539-7589; Jim Woodward, Chief Deputy Clerk, 314-539-7363
IN DEPTH
Mediation in Missouri Eastern
Overview
Authorization and description.
The Eastern District of Missouri's CJRA plan, effective January 1, 1994, and its General Order Pertaining to Alternative Dispute Resolution Procedures authorize the court's mediation program, an informal nonbinding dispute resolution process in which an attorney-neutral facilitates negotiations among the parties to help them reach a settlement. The program became operational on October 17, 1994. Most civil case types are eligible for referral to mediation, which may be ordered sua sponte by the judge, at the request of one party, or on stipulation of all parties. Any civil action may be referred to mediation, but the court generally will not select cases that are typically resolved without a hearing.
Number of cases.
Between mid-October 1994, when the program became operational, and mid-December 1994, three cases were referred to mediation. In years following, case referrals were: 1995, 91 cases; 1996, 447 cases; 1997, 621 cases; 1998, 605 cases; 1999, 571 cases.
Case selection
Eligibility of cases.
Most civil cases are eligible for referral to mediation. Particularly suitable are personal injury, products liability, and routine diversity cases; disputes involving long-term relationships; and environmental and regulatory disputes.
The court does not refer to mediation cases that would ordinarily be resolved without a hearing: appeals from rulings of administrative agencies, habeas corpus and extraordinary writs, bankruptcy appeals, Social Security cases, and prisoner civil rights cases. Cases that may also be considered unsuitable include those involving substantial issues of public policy, multiple parties, or esoteric or unsettled legal issues.
Referral method.
Cases may be referred to mediation by the court on its own motion, on the motion of any party, or by stipulation of the parties. The court enters an order of referral, which includes a maximum number of days in which the parties must conclude the ADR process.
Opt-out or removal.
The mediator may terminate the mediation session if the case seems inappropriate for mediation.
Scheduling
Referral.
Referral may be made at any time appropriate to the case but normally occurs at the Rule 16 conference.
Written submissions.
Seven days before the first meeting or conference, each party must provide the mediator and serve on all parties a summary of disputed facts and a discussion of its position on liability and damages. These documents are not court documents and are not filed in the record of the case.
Mediation session.
The order of referral includes a maximum number of days in which the parties must complete the mediation process. The designated lead counsel is responsible for coordinating the date, time, and location of the initial conference, in consultation with the mediator and parties. Parties are entitled to at least fourteen days' notice of the first conference. Subsequent sessions are scheduled by the mediator in consultation with the parties. If the parties request that the conference be held in the courthouse, the clerk will make space available.
Number and length of sessions.
The number and duration of the mediation sessions are determined by the mediator in consultation with the parties.
Program features
Discovery and motions.
Unless otherwise ordered by the court, referral to mediation does not suspend other action in the case, and no scheduled dates for submissions or other pretrial events may be delayed or deferred, including the date of trial.
Party roles and sanctions.
Unless excused by the judge, the attorney primarily responsible for the case must attend the mediation conference. Parties and corporate representatives and insurers who have authority to settle must also attend. Willful or negligent failure to attend must be reported to the court by the mediator in a compliance report, and sanctions may be imposed by the assigned judge. The judge may also impose sanctions for the failure of a party, its representatives, or counsel to proceed or participate in good faith in any other aspect of the mediation process.
Mediator's assessment report.
A mediator is not required to provide the parties with written recommendations but may, at his or her discretion, offer an assessment report and a recommended settlement. This report may not be filed with the clerk or provided to the judge, but counsel must transmit it promptly to their clients.
Outcome.
If the session concludes without settlement of any part of the case, the mediator must promptly file a written certification with the clerk, indicating whether there has been compliance with the judge's referral order. If the parties reach an agreement, a written settlement or a stipulation signed by all parties and counsel is filed with the court, and a copy is sent to the mediator within fourteen days of the last session.
Confidentiality.
The mediation session is private. All written and oral communications made or disclosed to the mediator are confidential and may not be disclosed by the mediator, any party, or any other participant unless agreed on in writing. The mediator may not be called as a witness in any proceeding by any party or the court.
Neutrals
Qualifications and training.
A candidate may be certified by the court as a neutral if he or she (1) has been admitted to the bar of the highest court of any state or the District of Columbia for at least five years and is a member in good standing, and (2) has completed a training course sponsored by the district court or a training program of at least sixteen hours provided by any sponsor accredited under Missouri Supreme Court Rule 15.04. In exceptional circumstances, an individual who does not meet these criteria may be approved for appointment to a particular case with the consent of the parties and the court.
Selection for case.
Within ten days of the entry of order of referral to mediation, the parties must select a mediator from the court's list of certified neutrals and notify the clerk in writing of their choice. If they cannot agree, the clerk selects the mediator. In consultation with the parties, the judge may also appoint a person from the list who has special subject matter expertise or designate a mediator who is not on the list. The clerk sends notice of appointment to the mediator.
Disqualification.
A mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must be disqualified in any case in which such action would be required by a justice, judge, or magistrate judge governed by 28 U.S.C. § 455.
Immunity.
Immunity is not provided in the rules, but neutrals on the court's panel have been advised of the holding in Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994) (court-appointed mediator or neutral case evaluator has absolute quasi-judicial immunity when performing official duties).
Fees.
The cost of the mediator's service is borne equally by the parties at the rate or fee stated in the mediator's fee schedule. The court reserves the right to review the reasonableness of the fee and to enter an order modifying it. A party may obtain appointment of a mediator who has agreed to serve pro bono if the party demonstrates to the judge a financial inability to pay a fee. The list of certified neutrals maintained by the clerk indicates which neutrals have agreed to serve pro bono.
Program administration
The ADR program is administered by the clerk's office.
Early Neutral Evaluation in Missouri Eastern
Overview
Description and authorization.
The Eastern District of Missouri's CJRA plan, effective January 1, 1994, and its General Order Pertaining to Alternative Dispute Resolution Procedures authorize the court to refer civil cases to ENE in the early pretrial period for a nonbinding assessment by an experienced neutral-evaluator. The court may refer any civil case in which the judge believes the parties are likely to benefit from such a referral. The judge may order a referral to ENE sua sponte or at the request of one party.
The objective of ENE in this district is to promote early and meaningful communication, enable parties to plan their case effectively, and inform parties of the relative strengths and weaknesses of their positions. While this confidential environment provides an opportunity to negotiate a resolution, immediate settlement is not a primary purpose of this process.
Number of cases.
The early neutral evaluation procedure became operational on October 17, 1994. By 2000, the number of cases referred to ENE was 5 to 10 per year.
Case selection
Eligibility of cases.
The court may refer to ENE any civil case in which the judge believes the parties would be assisted by such a procedure. No cases are categorically excluded.
Referral method.
At the initial scheduling conference, the court may order referral of a civil case to ENE on its own motion or on the motion of any party, if the case is one in which the judge believes all parties are likely to benefit from such referral.
Opt-out or removal.
The neutral may terminate the session if the case appears inappropriate for ENE.
Scheduling
Referral.
Referral occurs at the initial Rule 16 scheduling conference.
Written submissions.
Seven days before the first meeting or conference each party must provide the neutral and serve on all parties a memorandum presenting a summary of disputed facts and a narrative discussion of its position relative to both liability and damages. These documents are not court documents and are not filed in the record of the case.
ENE session.
The order of referral includes a maximum number of days in which the parties must conclude the ENE process. The designated lead counsel is responsible for consulting with the neutral and the parties and coordinating the date, time, and location of the initial conference. Parties must be given at least fourteen days' notice of the first conference. Subsequent sessions are scheduled by the neutral in consultation with the parties. If a party requests that the conference be held in the courthouse, the clerk will make space available.
Number and length of sessions.
The number and duration of ENE sessions are determined by the neutral in consultation with the parties.
Program features
Discovery and motions.
Unless otherwise ordered by the court, referral to ENE does not suspend other action in the case, and no scheduled dates for submissions or other pretrial events may be delayed or deferred, including the date of trial.
Party roles and sanctions.
Unless excused by the judge, the attorney primarily responsible for the case, the parties, and corporate representatives and insurers must attend the ENE session. Willful or negligent failure to attend must be reported in a compliance report filed with the court by the neutral-evaluator. The judge may impose sanctions. The judge may also impose sanctions for any other failure of a party, its representatives, or counsel to proceed or participate in the ENE process in good faith.
Evaluator's assessment report.
The evaluator is not obligated to provide the parties with written recommendations but may at his or her discretion offer an assessment report and a recommended settlement. This report may not be filed with the clerk or provided to the judge, but counsel are required to transmit it promptly to their clients.
Outcome.
If the session concludes without settlement of any part of the case, the neutral files a written certification with the clerk indicating whether the parties complied with the judge's referral order. If the parties reach an agreement, a written settlement or a stipulation signed by all parties and counsel is filed with the court and a copy is sent to the neutral within fourteen days of the last conference. If referral to ENE results in decisions or agreements by the parties regarding case planning, the parties must file their plan with the court for approval and provide a copy to the neutral.
Confidentiality.
The ENE session is private. All written and verbal communications made or disclosed to the neutral are confidential and may not be disclosed by the neutral, any party, or any other participant unless agreed on in writing. The neutral may not be called as a witness in any proceeding by any party or the court.
Neutrals
Qualifications and training.
A candidate may be certified by the court as a neutral if he or she (1) has been admitted to the bar of the highest court of any state or the District of Columbia for at least five years and is a member in good standing, and (2) has completed a training course sponsored by the district court or a training course of at least sixteen hours provided by any sponsor accredited under Missouri Supreme Court Rule 15.04. In exceptional circumstances, an individual who does not meet these criteria may be approved for appointment to a particular case if the parties consent and if ordered by the court.
Selection for case.
Within ten days of the entry of order of referral to ENE, the parties must agree on and notify the clerk in writing of their choice of a neutral from the court's roster. If the parties cannot agree, the clerk selects the neutral. The judge may also, in consultation with the parties, appoint a person from the roster who has special subject matter expertise or designate a neutral who is not on the list. The clerk sends a notice of appointment to the neutral.
Disqualification.
A neutral may be disqualified for bias or prejudice as provided in 28 U.S.C. § 144 and must be disqualified in any case in which such action would be required by a justice, judge, or magistrate judge governed by 28 U.S.C. § 455.
Immunity.
Immunity is not an element of the program, but neutrals have been advised of the holding in Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994) (court-appointed mediator or neutral case evaluator has absolute quasi-judicial immunity when performing official duties).
Fees. The cost of the neutral's service is borne equally by the parties at the rate or fee stated in the neutral's fee schedule. The court reserves the right to review the reasonableness of the fee and to enter an order modifying it. A party may obtain appointment of a neutral who has agreed to serve pro bono if the party demonstrates to the judge a financial inability to pay a fee. The list of certified neutrals maintained by the clerk indicates which neutrals have agreed to serve pro bono.
Program administration
The ADR program is administered by the clerk's office.
Excerpted from
ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996,
a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution