Rule 17

1. Rule 17 • Originally promulgated in 1992, amended in 1996 to take effect in 1997 • Subject to local adoption • Jackson County adopted as Rule 25

2. Purpose • To encourage use of ADR in all civil suits • Exempts cases under Rule 88 ( child custody) • Alternative to trial not replacement

3. Definitions • Defines five most common processes: Arbitration, ENE, Mediation, Mini-trial, SJT • Non-binding unless the parties agree otherwise in writing. Such agreement will be binding on the court to the extent not prohibited by law.

4. Notice Requirements • Notice is given to plaintiff at the time of filing and to defendant when served. • Requires counsel “ to advise their clients of the availability of ADR programs” Quere:Will the failure to do so constitute an ethical violation?

5. Voluntary? Compulsory? • Parties can agree and court will issue order • Court may initiate and sustain an ADR order • Parties can seek an “opt out” within 30 days of order • But court may REQUIRE participation if there are compelling circumstances

6. Neutrals • Parties can choose • Court will appoint • Court will maintain list but will not dictate fees • Qualifications: mediators need 16 hours of training, others need 4 hours as determined by Missouri Bar • Court can set other requirements such as length of experience

7. Reporting requirements • Unless agreed otherwise, results reported to parties only to serve as a guide for settlement • Results are inadmissible in any court • Conclusion of ADR is reported to court within 10 days

8. Confidentiality • Tracks language of Arbitration statute • Neutral cannot be subpoenaed • Settlement shall be by written document executed AFTER the termination of process • Neutral can be compelled to testify as to events occurring after ADR completed • Discovery can continue contemporaneously with ADR process

9. Attorney Perspectives on Rule 17 • Study conducted by Supreme Court ADR Committee • Based on experience with ADR after 1997 amendment through 1999 • Data collected an analyzed by categories: Jackson County, St. Louis City, St. Louis County, Outstate • More than 75% of respondents participated in ADR process within the last two years, highest % was in Jackson County

10. Why Attorneys had not been involved in ADR Process • 57% -Not had a case appropriate for ADR • 34%- Court does not actively encourage • 30% - prefer judge or jury trial • 26%- settle cases as well or better without ADR • 25%- imposes additional expense

11. Use of ADR 90 % said ADR was useful in at least some cases 30% said they would “usually” use ADR even if Rule 17 repealed, another 55 % said they would use it “sometimes”. 35% said cases “usually “ settle faster with ADR, another 48 % said they “sometimes” settled faster. 36 % said ADR “usually” saved money, another 45 % said they “sometimes” saved money.

12. When is ADR discussed with opposing counsel? • 50% within 6 months • 30% within one year • 15 % hardly ever unless opposing counsel or judge raises the issue

13. Settlement rates • 30% reported increase in settlement rates • 57% said clients wanted to stay out of court, 42% indicated that the use of ADR led to increase in settlement rates.

14. When is ADR discussed with clients? • 62% within six months of filing • 18% within one year • 16% hardly ever • 4% right before trial

15. Mediation • Most commonly used process • Reasons given: saves expense (85%), speeds settlement ( 76%), provides reality check for opposing lawyer or party (69%), settlement more likely ( 69%), helps everyone value case (69%), provides own client with reality check ( 67%), clients like mediation (32%), creative solutions more likely ( 23%) preserves party relationship (8%). • What style of mediation is likely to produce these results?