IHOP IP, LLC et al v. International House of Prayer et al
Filing
2
Notice of EAP assignment to an outside mediator sent via electronic notice to plaintiffs' counsel. (Attachments: # 1 EAP General Order)(Martin, Jan)
General Order
Western District of Missouri
EARLY ASSESSMENT PROGRAM
Effective September 13, 2007
I.
PURPOSE
The Early Assessment Program is designed to encourage parties to: 1) confront the facts
and issues in their case before engaging in expensive and time-consuming discovery
procedures, 2) engage in early discussions of the issues, 3) consider the views of the
opposing side, 4) consider the projected costs of future proceedings in an effort to settle
the case before costs and lawyers’ fees have made settlement more difficult, and 5)
consider other methods of resolving their disputes. It recognizes that full formal litigation
of civil claims can impose large economic and other burdens on parties and can delay the
resolution of disputes. It will be administrated by a “Program Administrator” in the
Western, Southern and Central Divisions of this Court. All references to “Administrator”
shall be deemed to be referring to the “Program Administrator” or his/her designee.
This Program was carefully designed to allow measurement of savings of time and money
to litigants. It has proven highly successful on both counts. Additionally, measures of
satisfaction by judges, lawyers, participants and clients are reflected in the value and
success of the Program.
II.
PROGRAM DESCRIPTION AND PROCEDURE
A.
Case Selection
1.
All nonexcluded civil cases filed in the Western District shall be included
in the Early Assessment Program.
2.
Excluded Cases. The following cases are excluded from the program:
a.
b.
c.
d.
e.
f.
g.
h.
.
3.
Multi-district cases
Social Security appeals
Bankruptcy appeals
Habeas Corpus actions
Prisoner pro se cases and other pro se cases where motion for
appointment of counsel is pending
Prisoner cases
Student Loan cases
Citizenship or Immigration cases.
Class Actions. The Administrator may determine in his or her discretion
when and how to involve class action cases in the program.
09/13/2007
B.
Early Assessment Meeting/Settlement Meeting (Meeting). A meeting shall
normally be held within thirty days after filing of responsive pleadings or as soon
thereafter as practical. A meeting will be held at the time set by the Administrator
or Designated Individual.
1.
The Administrator or designated individual shall notify the lawyers (or pro
se parties, if applicable) of the date of the meeting or a time frame to set
the meeting.
2.
At the meeting, the Administrator or designated individual should advise
the parties and their lawyers of the various "alternative dispute resolution"
(ADR) options available to them for a resolution of their dispute as set out
in section VII.
3.
If the Administrator or designated individual, in consultation with the
parties, determines that additional discovery is needed , the Administrator
or designated individual shall, working with the parties, devise a plan for
sharing the important information and/or conducting the key discovery that
will equip them, as expeditiously as possible, to enter meaningful
settlement discussions.
4.
Regardless of whether a case enters the ENE program, the Administrator
or designated individual shall also help the parties identify areas of
agreement and explore the possibility of settling the case through
mediation techniques. If appropriate, a mediation or early neutral
evaluation process may be initiated immediately, or at a later date, with the
Administrator or designated individual serving as mediator.
5.
Participants in the program must select, with the assistance of the
Administrator or designated individual, one of the ADR options. If the
parties are unable to agree, the Administrator or designated individual
shall select the ADR option. If the Administrator or designated individual
determines that a second session is necessary before a decision can be
reached on the appropriate ADR process, it may be scheduled as soon as
possible.
6.
The first session of the ADR process selected should not be held later than
forty-five days after the first meeting, unless the Administrator or
designated individual, in his or her discretion, determines that a later date
is necessary. Additional sessions can be required by the Administrator or
Judge.
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C.
Opting Out. Cases will not normally be allowed to opt out of the program.
However, there may be cases where good cause can be demonstrated for opting
out. All requests to opt out shall be in letter form and shall set forth in detail the
reasons for the request. A letter asking to opt out shall be directed to the
Administrator within ten days of receiving notice that the case is assigned to the
program. Subject to the considerations stated herein, the Administrator may grant
or deny the request in his or her discretion. Appeals from the Administrator's
decision, while discouraged, may be made by written motion to the judge to
whom the case is assigned.
D.
Notice to Parties. Notice to parties of case selection for the program shall be
provided as follows:
1.
The Clerk shall provide a copy of the Notice to each lawyer filing an
action and to each eligible person filing such action pro se.
2.
The Notice shall be attached by the Clerk to each summons issued in such
action.
3.
Each lawyer shall, within twenty days after notice of suit, mail or deliver a
copy of the Notice to each party that he or she represents, and shall
promptly file a certificate stating:
(a)
(b)
client’s name, date and address to which the Notice was mailed; or
client’s name and the date and place of delivery of the Notice.
The certificate may be contained in the answer or other responsive
pleading.
III.
PROGRAM ADMINISTRATOR (ADMINISTRATOR )
A.
Selection. A Program Administrator for each Division shall be selected by the
Court.
B.
Administrator - Responsibilities. In addition to any responsibilities or duties
noted elsewhere in this General Order, the Administrator shall have the following
responsibilities:
1.
Administer the program, including developing rules consistent with this
General Order and coordination of all activities with the office of the
Western District Clerk. The Administrator shall be responsible for the
assignment of cases in the Early Assessment Program.
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2.
3.
Assign cases for mediation or for other appropriate ADR procedure to:
United States Magistrate Judges, United States Bankruptcy Judges, outside
mediators (sometimes referred to as “designated individual”), the
Administrator, and if a United States District Court Judge consents to the
assignment, cases may be assigned to a United States District Court Judge.
4.
Assist in monitoring the evaluation of the program, including participation
in the development, compilation and analysis of questionnaires for lawyers
and clients.
5.
To require mediators on the list to take selected cases pro bono. Such
assignment shall be made using a fair process in the sole discretion of the
Administrator. The Administrator shall develop guidelines for
determining whether a case qualifies for pro bono assignment.
6.
Report to the Court on the status of the program, making appropriate
recommendations for modifications of the program.
7.
Decide, in his or her discretion, at any time in the process, to exempt,
temporarily suspend, delay the start date or withdraw a case from the
program, if for any reason, the case is not suitable for the program.
8.
Permit, in his or her discretion, parties to submit written statements, no
longer than ten pages, and no sooner than seven days prior to the session,
for those ADR processes where written statements are not usually
submitted.
9.
IV.
Serve as a mediator at the assessment meeting or at any subsequent session
in his or her discretion. The Administrator may set and conduct mediation
sessions as time permits.
Develop a policy which will address the collection of files, written
statements, and other confidential materials for storage or destruction.
ATTENDANCE AT PROGRAM SESSIONS
A.
Parties
1.
It is the intent of the Court that the parties attend all program sessions
where there will be significant discussion about resolving the case. The
parties themselves shall attend all program sessions unless their attendance
has been excused in advance by the Administrator, Mediator or Designated
Individual. This attendance requirement reflects the Court's view that one
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of the principal purposes of the program sessions is to afford litigants an
opportunity to articulate their positions and to learn about opposing parties'
positions.
2.
Where attendance of a party is required, a party other than a person
satisfies the attendance requirement if it is represented by a person or
persons, other than outside or local counsel, with authority to enter into
stipulations, with reasonable settlement authority, and with sufficient
stature in the organization to have direct access to those who make the
ultimate decision about settlement. In addition, if an insurance company’s
approval is required by any party to settle a case, a representative of the
insurance company with significant settlement authority shall attend the
early assessment meeting in person. If it appears to the Administrator,
Mediator or Designated Individual that a case is not being reasonably
evaluated by the representative present, the Administrator, Mediator or
Designated Individual may meet privately with one or both sides to
determine the analysis that has gone into the evaluation of the case,
including the names and the authority of the individual involved in the
analysis. The Administrator, Mediator or Designated Individual may
request identified individuals or designate a level of authority to be present
if subsequent early assessment meetings or alternative dispute resolution
procedures are scheduled under the Early Assessment Program. The
Administrator, Mediator or Designated Individual may vary the mandates
of this section IV.A.2.
B.
C.
V.
Counsel. Each party shall be accompanied by the lawyer expected to be primarily
responsible for handling the trial of the matter. If an individual is not represented
by counsel, that party may appear on his or her own behalf.
Location. The program sessions shall be held in meeting space at the United
States Courthouse, or in some other location selected by the Administrator,
Mediator or Designated Individual, or in a location agreed to by the parties and
approved by the Administrator, Mediator or Designated Individual.
CONFIDENTIALITY
A.
General Provision
1.
This Court shall treat as confidential all written and oral communications,
not under oath, made in connection with or during any Early Assessment
Program session except as noted in sections V.B. and D.
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2.
B.
Any communication not under oath made in connection with this program
shall not be disclosed to anybody unrelated to the program by the parties,
their counsel, mediators or any other participant in the program and shall
not be used for any purpose in any pending or future proceeding in this
Court except by consent of the parties or as allowed under the Federal
Rules of Evidence or sections V.B. or D. below. Communications made
in connection with any proceeding in connection with this program include
the comments, assessments, evaluations or recommendations of the
Administrator, Mediator or Designated Individual. Mediators shall not
discuss any matter communicated to them during any program proceeding
except with the permission of the parties or as allowed in sections V.B. or
D. below.
Exceptions
1.
The Administrator may attend any program session and may discuss with
any Mediator, Designated Individual or party any communication,
comment, assessment, evaluation or recommendation.
2.
The Administrator may require any attorney or party to provide status
reports on any ADR matter.
3.
The Administrator, Mediators and Designated Individuals may
communicate to the assigned judge or the Court en banc regarding
noncompliance by parties or lawyers with this General Order.
4.
Nothing in section V.A. above shall prevent any party, the Administrator,
Mediator or Designated Individual from discussing with any other
participant in the program any communication made in connection with
the program.
C.
Information Under Oath. Any information furnished under oath, whether by
affidavit, testimony or otherwise, may be used for impeachment purposes in this
Court or elsewhere. Nothing in this Order is intended to provide any protection
from the criminal consequences of making a false statement under oath.
D.
Evaluation. Nothing in section V.A. shall be construed to prevent parties,
counsel, the Administrator, Mediator or Designated Individual from responding to
inquiries by persons duly authorized by the Court en banc to analyze and evaluate
the program. The names of the people responding and any information that could
be used to identify specific cases or parties shall be confidential.
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E.
VI.
No Recording. No recording shall be made of any of the meetings or sessions
held under the program, nor shall parties utilize private reporters or any other type
of recording technology during the program meetings or sessions, unless all
parties agree, or unless the recording is made under non-binding arbitration, or
unless the parties have agreed to binding arbitration.
EVALUATION
If funds are available, the Court may require evaluation of the program to: (a) determine
the success of the program in expediting the processing of cases and reducing costs; (b)
measure the satisfaction of the parties with the program; and (c) compare components or
elements of the program.
VII.
ALTERNATIVE DISPUTE RESOLUTION (ADR) OPTIONS AND PROCEDURES
A.
Procedures Applicable to Mediation, Early Neutral Evaluation and Any
Other ADR Sessions
1.
In every case, the Administrator shall:
(a)
designate the method of selection of the individual who will serve
as the mediator in accordance with this program; and
(b)
designate the period in which the ADR process shall be conducted
if the mediator is not an employee of the court.
2.
Not later than ten days after selection of a mediator who is not a court
employee, counsel shall file a report with the Administrator stating the
agreed-upon meeting date for the ADR process selected. Where a court
employee is the mediator, counsel shall work out the schedule with the
court employee mediator.
3.
Upon failure of counsel either to file the report or to secure a mutually
agreeable date, the Administrator or judicial mediator shall fix the date,
time and place for the ADR process.
4.
Failure to comply with the attendance or settlement authority requirements
of sections IV.A. and C. of the General Order may subject a party, and/or
the lawyer, to sanctions by the Court.
5.
The Mediator who is not an Administrator or Judge may, with the consent
of all parties and counsel, reschedule the session to a date certain not later
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than ten days after the scheduled date. Any continuance beyond that time
must be approved by the Administrator.
6.
7.
Within ten days following the conclusion of the session, the Mediator and
counsel shall file a report with the Administrator stating whether all
required parties were present and the outcome of the session, in addition to
other information the Administrator may require for evaluation or followup purposes. The Administrator may request a status report from the
lawyers at any time.
8.
B.
Subject to approval of the Mediator, the session may proceed in the
absence of a party who, after due notice, fails to be present. Upon motion
of an attending party or upon the Court's own motion, sanctions may be
imposed by the Court on any party or lawyer who, absent good cause
shown, failed to attend the meeting.
If the parties settle the case prior to the ADR session, the Mediator,
Administrator and Court shall be advised promptly.
Description of Specific ADR Options and Procedures
1.
Mediation (including Facilitative Mediation, Evaluative Mediation
and Judicial Mediation)
a.
Mediation is a process in which a neutral third party assists the
parties in developing and exploring their underlying interests (in
addition to their legal positions), promotes the development of
options and assists the parties toward settling the case through
negotiations.
b.
The mediator should be a person who possesses the unique skills
required to facilitate the mediation process, including the ability to
help the parties develop alternatives, analyze issues, question
perceptions, use logic, conduct private caucuses, stimulate
negotiations between opposing sides and keep order.
c.
The mediation process does not normally contemplate
presentations by witnesses. The mediator does not review or rule
upon questions of fact or law, or render any final decision in the
case.
d.
The Mediator may also offer a nonbinding, reasoned evaluation of
the case on its merits.
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e.
No Evaluator or Mediator has power to impose a settlement or to
dictate any agreement regarding the pretrial management of the
case.
f.
Mediation statements, if required, shall not be filed with the Court,
and the Judge assigned to hear the case shall not have access to
them.
g.
The Mediator may give to any or all parties:
(1)
an estimate, where feasible, of the likelihood of liability
and the dollar range of damages; and
(2)
an opinion of the verdict if he or she were the trier of fact.
2.
3.
VIII.
Early Neutral Evaluation. Early neutral evaluation is a process in which
parties obtain from an experienced neutral (an Evaluator) a non-binding,
reasoned evaluation of the case on its merits. After essential information
and position statements are exchanged, the Evaluator convenes a session
which typically lasts about two hours. At the meeting, each side briefly
presents the factual and legal basis of its position. The Evaluator may ask
questions and help the parties identify the parties’ underlying interests and
main issues in dispute, as well as areas of agreement. He or she may also
help the parties explore options for settlement. If settlement does not
occur, the Evaluator then offers an opinion as to the settlement value of the
case, including the likelihood of liability and the likely range of damages.
With the benefit of this assessment, the parties are again encouraged to
discuss settlement, with or without the Evaluator’s assistance. They may
also explore ways of narrowing the issues, exchanging information about
the case or otherwise preparing efficiently for trial.
Other Options. The Administrator in his or her discretion, after
consultation with the parties, may select some other form of alternative
dispute resolution such as mini-trials, summary jury trials, or some hybrid
form of alternative dispute resolution. The Administrator may not select
binding arbitration unless all parties agree.
LIST OF NEUTRALS/MEDIATORS
A.
List of Mediators. The Administrator shall prepare a list of persons who appear
to have the minimum requirements to serve as a Mediator, as described below.
The Administrator may add or delete persons from the List of Mediators. A copy
of the List of Mediators will be furnished upon reasonable request.
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A separate list shall be prepared for each of the following: the Western Division,
Central Division, and Southern Division.
Being on the List of Mediators is not an indication that a person is a qualified
mediator. The Court is not certifying or representing that persons on the List of
Mediators are qualified.
B.
Minimum Requirements to be on the List of Mediators
1.
All applicants for the List of Mediators must complete the required
application form.
2.
A person may be placed on the List of Mediators if:
(a)
the person has been a United States District Judge, a United States
Appellate Judge, a United States Magistrate Judge, a United States
Bankruptcy Judge, a Missouri Circuit Court Judge, or a Missouri
Appellate Judge; and has had arbitration or mediation experience,
and has not demonstrated any trait or behavior that is reasonably
believed by the Administrator to be contrary to the effective and
efficient management of this program; or
(b)
the person is currently admitted to the Bar of this Court, has been a
member of a state bar for at least eight consecutive years, has
completed 16 hours of Continuing Legal Education training,
certified under Missouri Supreme Court Rule 17 or by this Court,
or the reasonable equivalent thereof, and has not demonstrated any
trait or behavior that is reasonably believed by the Administrator to
be contrary to the effective and efficient management of this
program.
C.
Removal From List of Mediators. The Administrator may remove any person
from the List of Mediators for any reason consistent with the effective
management of the program.
D.
Selection of Neutrals
1.
The parties or their attorneys may, within fifteen days after notice to select
a Mediator, select as a Mediator any person on the List of Mediators. If
the Administrator approves, in writing and in advance, the parties may
select as a neutral a person not on the List of Mediators.
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2.
If the parties do not agree on a neutral, the Administrator will give the
parties a list of potential neutrals selected by the Administrator. The
number of potential neutrals on the list will be twice the number of "sides"
in the litigation plus one. (For example, in litigation having two "sides,"
the list will contain five names.) The list of potential neutrals will be dated
the date it is delivered to the parties or the date it is mailed to the parties
by the Administrator. The parties shall have ten days from the date on the
list of potential neutrals to:
(a)
agree as to a neutral on the list and to report the selection of the
agreed neutral to the Administrator in writing, or
(b)
designate a "strike" of the names of two potential neutrals on the
list of potential neutrals. The strikes shall be in writing and shall
be delivered to the Administrator.
Unless the parties have agreed on a neutral as set out above, the
Administrator shall designate one of the persons remaining on the list of
potential neutrals and shall promptly notify the parties and the neutral of
the designation.
E.
Oath. Each Mediator shall take and sign the oath or affirmation prescribed by 28
U.S.C. § 453 before acting as a Mediator.
F.
Disqualification
1.
2.
No person shall serve as a Mediator in any action in which any of the
circumstances specified in 28 U.S.C. § 455 exist and would apply if the
mediator were a "judge."
3.
G.
Title 28 U.S.C. § 144 may be utilized to seek the disqualification of a
Mediator.
Any party who believes that a Mediator has a conflict of interest or should
be disqualified shall immediately bring the matter to the attention of the
Administrator.
Compensation
1.
a.
Normally Mediators shall be compensated no more than the hourly
rate listed by them in their application filed with the Administrator
and shown on the List of Mediators. However, if agreed in writing
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and in advance between the Mediator and the parties, the Mediator
may be compensated at the hourly rate stated in such agreement.
b.
c.
Absent agreement to the contrary, or unless the Administrator
determines otherwise, the cost of the Mediator’s services shall be
borne equally by the parties.
d.
A duplicate of all charges for a Mediator’s compensation and
expenses shall be sent to the Administrator.
e.
2.
The Administrator may promulgate additional guidelines for
Mediators for allowable charges by nonjudicial Mediators (e.g., for
research, preparation, opinion writing, etc.) and expenses.
Except as provided in this section, a Mediator shall not charge or
accept anything of value from any source whatsoever for or
relating to acting as a Mediator.
A party may request the service of a Mediator on a pro bono basis, if a
party demonstrates to the Administrator an inability to pay the fees of the
Mediator. As a condition to inclusion on the List of Mediators maintained
by the Administrator, a Mediator shall agree to serve pro bono periodically
as assigned by the Administrator.
H.
I.
IX.
Mediators as Counsel in Other Cases. Any person who is designated as a
Mediator pursuant to this General Order shall not for that reason be disqualified
from appearing as counsel in any other unrelated case pending before the Court.
Reports of Violations. Mediators and attorneys shall promptly report in writing
violations of this General Order to the Administrator and the Court.
SANCTIONS
If a party fails to make a good faith effort to participate in the program in accordance with
the provisions and spirit of this Order, the assigned Judge or Court may impose
appropriate sanctions.
(Adopted effective Jan. 1, 1992, through Dec. 31, 1994; amended April 7, 1992; ending
date extended through Sept. 30, 1995, by General Order dated Oct. 27, 1994; ending date
extended through Dec. 31, 1996, by General Order dated Nov. 15, 1995; amended by
General Order effective Jan. 1, 1999, and extended through the effective date of this
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order; amended effective March 1, 2002, by General Order dated Feb. 22, 2002; amended
by General Order dated and effective May 9, 2002.)
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