Faughn et al v. JPMorgan Chase Bank, NA

Filing 2

NEW NOTICE OF INCLUSION FOR MEDIATION AND ASSESSMENT PROGRAM (MAP). REVIEW NEW NOTICE AND NEW MAP GENERAL ORDER CAREFULLY FOR IMPORTANT CHANGES, DEADLINES AND REQUIREMENTS.Notice of MAP assignment to an outside mediator. (Attachments: # 1 MAP General Order)(Martin, Jan)

General Order
Western District of Missouri
Mediation and Assessment Program
Restatement Effective August 1, 2013

I.

PURPOSE
The Court’s Mediation and Assessment Program (“MAP” or the “Program”) is
designed to encourage parties to: 1) confront the facts and issues in their case
before engaging in unnecessarily expensive and time-consuming discovery
procedures, 2) engage in early and meaningful 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 “Director,” and all references herein to “Director” shall
be deemed to be referring to the Director of the Program.

II.

PROGRAM OVERVIEW
A.

Mediation. Mediation is the primary method of Alternative Dispute
Resolution (“ADR”) offered by the Court under this Program.
1.

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. The mediation process does not normally
contemplate presentations by witnesses.

2.

The Director, Mediating Judge or Outside Mediator (collectively
“Mediator”) may give to any or all parties:
a)
b)

an opinion of the verdict if he or she were the trier of fact;

c)

an assessment of key evidentiary and tactical issues; and

d)
3.

an estimate, where feasible, of the likelihood of liability
and the dollar range of damages;

a nonbinding, reasoned evaluation of the case on its merits.

The Mediator does not review or rule upon questions of fact or
law, or render any final decision in the case.

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4.

B.

III.

The Mediator does not have power to impose a settlement or to
dictate any agreement regarding the pretrial management of the
case. This provision shall not preclude the parties from reaching
an agreement with assistance from the Mediator as to what
information should be exchanged prior to mediation, so long as it
does not contradict or conflict with the Scheduling Order or any
other order as to the management of the case.

Other Options. If any participant in the Program is interested in an ADR
option other than mediation, such as early neutral evaluation, mini-trials,
summary jury trials, arbitration or some other hybrid form of ADR (“other
ADR option sessions”), that participant should contact the Director to
discuss sufficiently in advance of the mediation or pre-mediation
conference, if applicable. If the parties are unable to agree, the Director in
his or her discretion, after consultation with one or all the parties, may
select some other form of ADR. The Director may not select binding
arbitration unless all parties agree in writing.

ROLE OF DIRECTOR
A.

Selection. The Program Director shall be selected by the Court.

B.

Director Responsibilities. In addition to any responsibilities or duties
noted elsewhere in this General Order or as assigned by the Chief Judge,
the Director shall have the following responsibilities:
1.

Direct and administer the Program, including developing
guidelines and rules consistent with this General Order and
coordination of all activities with the office of the Western District
Clerk.

2.

Set and conduct mediation sessions or other ADR option sessions
as time permits. Serve as a mediator at any subsequent mediation
or other ADR option sessions in his or her discretion.

3.

Oversee the assignment, and where necessary reassignment, of
cases in the Mediation and Assessment Program. To the extent not
otherwise handled automatically by CM/ECF, assign cases for
mediation or for other appropriate ADR option sessions to: United
States Magistrate Judges, United States Bankruptcy Judges,
Outside Mediators, the Director, 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
surveys, questionnaires and focus groups for counsel and clients.
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5.

6.

Report to the Court on the status of the Program and make
appropriate recommendations for modifications of the Program.

7.

Decide, in his or her discretion, at any time in the process, to
exempt, temporarily suspend, extend the deadlines 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 mediation
or other ADR statements, no longer than three pages three business
days prior to the session.

9.

Organize and conduct, in his or her discretion, training or other
sessions for Mediators and participants as needed and as time
permits.

10.

Select, organize and lead, in his or her discretion, a group or
advisory board to provide input and suggestions for the Program as
needed and as time permits.

11.

IV.

Require mediators on the List of Mediators to take selected cases
pro bono if needed. Such assignment shall be made using a fair
process in the sole discretion of the Director. The Director shall
develop guidelines for determining whether a case qualifies for pro
bono assignment.

Develop a policy which will address the collection of files, written
statements, and other confidential materials for storage and
destruction.

INCLUDED CASES
A.

Case Selection. All non-excluded civil cases filed in the Western District
shall be included in the Mediation and Assessment Program.

B.

Excluded Cases. The following cases are excluded from the Program:
1.

Multi-district cases

2.

Social Security appeals

3.

Bankruptcy appeals

4.

Habeas Corpus actions

5.

Prisoner pro se cases

6.

Other pro se cases where motion for appointment of counsel is
pending
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7.

Prisoner cases

8.

Student Loan cases

9.

Citizenship or Immigration cases.

C.

D.

V.

Class and Collective Actions. The Director may determine in his or her
discretion when and how to involve class and collective action cases in the
Program.
Additions. The Director or any Western District Judge may in his or her
discretion add additional cases to the Program which are not automatically
assigned to the Program.  

GENERAL PROCEDURES
A.

Notice to Parties. Notice to parties of case selection for the Program
shall be provided as follows:
1.

When a non-excluded case is filed, the parties will receive
electronic Notice of Inclusion in the Program and assignment of
their case to the Program Director, a Western District Judge or the
Outside Mediator category for purposes of mediation.

2.

The Clerk shall mail a copy of the Notice of Inclusion to any pro se
litigant who does not utilize CM/ECF.

3.

In pro se matters or other matters in which the Clerk is required to
issue service, the Notice of Inclusion shall be attached by the Clerk
to each summons issued in such action.

4.

Plaintiff’s counsel shall serve a copy of the Notice of Inclusion on
defense counsel in conjunction with service of the Complaint or, if
applicable, Defendant’s counsel shall serve a copy of the Notice of
Inclusion on Plaintiff’s counsel in conjunction with service of the
Notice of Removal.

B.

Timing. The initial mediation or other ADR option session conducted
pursuant to this Program shall occur no later than 75 calendar days after
the Rule 26 meeting unless an extension of time is granted pursuant to
Section V.C. below.

C.

Extensions
1.

Extensions of Deadlines and Events in Outside Mediator Cases and
Director Cases. Requests for extensions of Program deadlines and
events shall be made in writing (email and facsimile are
acceptable) to the Director within five business days of receiving
notice of the deadline or event, unless another timeframe is set by
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the Director. The request shall include the detailed good cause
reason for the requested extension and the opposing party’s
position on the requested extension. The Director may grant or
deny the request in his or her discretion. Appeals from the
Director's decision, while discouraged, may be made by written
motion to the Judge to whom the case is assigned.
2.

Extensions or Changes to a Mediation Date with a Mediating
Judge. If good cause exists to request a change in the mediation
date set by the Mediating Judge, such request shall be made in
writing to the Mediating Judge within five business days of notice
of the mediation or other ADR option session or within the
timeframe otherwise required by the Mediating Judge.

3.

Mediation Dates Set by Director or Mediating Judges. If the
Director or a Mediating Judge schedules a mediation or other ADR
option session outside the 75 calendar day period following the
Rule 26 meeting, such scheduling will operate as an automatic and
acceptable extension under this Section without any additional
action on the part of counsel or the parties.

D.

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 writing
and shall set forth in detail the reasons for the request. A written request
(email and facsimile are acceptable) asking to opt out shall be sent to the
Director within ten calendar days of receiving the initial Notice of
Inclusion that the case is assigned to the Program. Subject to the
considerations stated herein, the Director may grant or deny the request in
his or her discretion. Appeals from the Director's decision, while
discouraged, may be made by written motion to the Judge to whom the
case is assigned.

E.

Attendance at Program Sessions and Location.
1.

Parties and Representatives
a)

Parties. It is the intent of the Court that the parties attend
all mediation or other ADR option sessions in person where
there will be significant discussion about resolving the
case.

b)

Party Alternate. A party other than a natural person
satisfies the attendance requirement if 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
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organization to have direct access to those who make the
ultimate decision about settlement.
c)

Insurer. 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 mediation or other ADR option sessions in person.

2.

3.

Counsel. Each party shall be accompanied in person by the lawyer
expected to be primarily responsible for handling the trial of the
matter (“lead trial counsel”). Local counsel is not typically
required to attend the mediation or other ADR option session but
may be required to attend the mediation or other ADR session in
the Director’s discretion. If an individual is not represented by
counsel, that party may appear on his or her own behalf.

4.

Attendance. The parties, party alternate (when applicable), insurer
(when applicable) and lead trial counsel shall attend all mediations
or other ADR option sessions in person unless their attendance has
been excused in advance by the Director or Mediating Judge. This
attendance requirement reflects the Court's view that a couple of
the principle purposes of the Program sessions are to afford
litigants an opportunity to articulate their positions and to learn
about opposing parties' positions and to be properly positioned to
make effective progress toward resolving the case. See Section
VI.B.2. for limitations on excusal and modification of these
requirements by Outside Mediators.

5.

F.

Proper Representative. If it appears to the Mediator that a case is
not being reasonably evaluated by the representative present, the
Mediator 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 Mediator may request identified individuals or
designate a level of authority to be present if subsequent Program
sessions are scheduled.

Location. The mediations shall be held in meeting space at any of
the United States Courthouses in the Western District, or in some
other location selected by the Mediator, or in a location agreed to
by the parties and approved by the Mediator.

Additional Sessions. Additional mediation sessions or other ADR option
sessions may be required at the discretion of the Director, Mediating Judge
or the Judge to whom the case is assigned.

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G.

Mediation Statements. If required, mediation statements shall not be
filed with the Court, and the Judge assigned to hear the
case shall not have access to them.

H.

Mediation-Related Activities. The Mediator may in his or her discretion
conduct pre- and post-mediation activities including but not limited to a
pre-mediation conference to discuss, with the parties separately or jointly,
what discovery or additional discovery is needed and may 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.

I.

Status Reports. The Director may request a status report from the parties,
counsel or the Mediator at any time. Failure of the parties, counsel or
Outside Mediator to timely provide requested information may be grounds
for sanctions under Section X.

J.

Notice of Settlement. If the parties settle the case prior to the mediation
or other ADR option session, the Mediator, the Director and
the Court shall be advised promptly.

K.

Reports of Violations. Mediators, parties and counsel shall promptly
report in writing violations of this General Order to the Director and the
Court.

  VI. PROCEDURES APPLICABLE TO CASES MEDIATED BY AN OUTSIDE
MEDIATOR
A.

Selection of Outside Mediator
1.

Mediator Designation. When a case is assigned for mediation with
an Outside Mediator, the parties or their counsel shall within
fourteen calendar days after the Rule 26 meeting electronically file
a Designation of Mediator notice (as an ADR event in CM/ECF)
identifying their selected Outside Mediator and the date, time and
specific location of the mediation. If the Director approves, in
writing and in advance, the parties may select as a mediator a
person not on the List of Mediators.

2.

No Agreement. If the parties do not agree on, or choose not to
select, an Outside Mediator, the Director will give the parties a list
of potential mediators selected by the Director. The number of
potential mediators 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 parties shall have
seven calendar days from the date on the list of potential mediators
to:
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a)

agree as to a mediator on the list and to report the selection
of the agreed mediator to the Director in writing, or

b)

designate a "strike" of the names of two potential mediators
on the list of potential mediators. The strikes shall be in
writing and shall be delivered to the Director, preferably by
email or facsimile.

Unless the parties have agreed on a mediator as set out above, the
Director shall designate one of the persons remaining on the list of
potential mediators and shall promptly notify the parties and the
mediator of the designation.
Upon failure of counsel to file the Designation of Mediator with all
required information or to secure a mutually agreeable date, the
Director may fix the date, time and place for the mediation or other
ADR option session.
B.

Mediation with Outside Mediators
1.

Date of Mediation. Section V.B. governs the timeframe within
which the mediation or other ADR option session shall occur. The
Outside Mediator may, with the consent of all parties and counsel,
reschedule the mediation to a date certain not later than ten
calendar days after the scheduled date. Any continuance beyond
that time or any continuance of the mediation deadline itself must
be approved by the Director in accordance with Section V.C.

2.

Limits on Excusing Attendance Requirements. Outside Mediators
may not excuse the participation or appearance or allow an
alternate mode of appearance of a party, party alternate, insurer or
lead trial counsel from mediation without written approval from
the Director sufficiently in advance of the mediation or other ADR
option session.

3.

Post-Mediation Status Report. Within ten calendar days following
the conclusion of the mediation or other ADR option session, the
Mediator and parties (pro se or by counsel) shall submit a status
report to the Director stating whether all required parties were
present, the outcome of the session, whether additional settlement
discussions would be productive and at what point in time or after
what specific events, in addition to other information the Director
may require for evaluation or follow-up purposes. The Director
may request a status report from the counsel or the Mediator at
any time.

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VII.

LIST OF OUTSIDE MEDIATORS
A.

List of Mediators. The Director shall prepare a list of persons who appear
to have the minimum requirements to serve as a Mediator, as described
below. The Director may add or delete persons from the List of Mediators.
A copy of the List of Mediators will be available on the Court’s internet
site. 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, has had
arbitration or mediation experience, and has not
demonstrated any trait or behavior that is reasonably
believed by the Director to be contrary to the effective and
efficient management of this Program;

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 Director to be contrary to the
effective and efficient management of this Program; or

c)

the person is not an attorney but has obtained a degree or
extensive specialized training in alternative dispute
resolution, conflict management or another discipline, has
had mediation experience, is knowledgeable about civil
litigation in federal court, and has not demonstrated any
trait or behavior that is reasonably believed by the Director
to be contrary to the effective and efficient management of
this Program.

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C.

Removal from List of Mediators. The Director may remove any person
from the List of Mediators for any reason consistent with the effective
management of the Program, including but not limited to, the Outside
Mediator’s failure to: provide required reports, attend any required
training sessions, contribute pro bono mediation time if requested, timely
mediate cases or enforce applicable requirements for mediation in Outside
Mediator cases.

D.

Oath. Each Mediator shall take and sign the oath or affirmation
prescribed by 28 U.S.C. § 453 before acting as a Mediator.

E.

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.

F.

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 Director.

Compensation
1.

Normally Outside Mediators shall be compensated at no more than
the hourly rate listed by them in their application filed with the
Director and shown on the List of Mediators, which may be
updated on the List of Mediators at the request of the Outside
Mediator. However, if agreed in writing and in advance between
the Outside Mediator and the parties, the Outside Mediator may be
compensated at a different hourly rate or by an alternative
arrangement as stated in such agreement.

2.

The Director may promulgate additional guidelines for Outside
Mediators for allowable charges (e.g., for research, preparation,
opinion writing, etc.) and expenses.

3.

Absent agreement to the contrary, or unless the Director
determines otherwise, the cost of the Outside Mediator’s services
shall be borne equally by the parties.

4.

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.

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5.

G.

As a condition to inclusion on the List of Mediators maintained by
the Director, a Mediator shall agree to serve pro bono periodically
as assigned by the Director.

Mediators as Counsel in Other Cases. Any person who is designated as
an Outside 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.

VIII. CONFIDENTIALITY
A.

General Provision
1.

2.

B.

This Court shall treat as confidential all written and oral
communications, not under oath, made in connection with or
during any Program session except as otherwise noted in this
Section.
Any communication not under oath made in connection with any
proceeding in 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 this Section. Communications made in connection
with any proceeding in this Program include the comments,
assessments, evaluations or recommendations of the Mediator.
Mediators shall not discuss any matter communicated to them
during any Program proceeding except with the permission of the
parties or as allowed in Section VIII.B. below.

Exceptions
1.

The Director may attend any Program session and may discuss
with any Mediating Judge or Outside Mediator or party any
communication, comment, assessment, evaluation or
recommendation.

2.

The Director may require any attorney or party to provide status
reports on any ADR matter.

3.

The Director, Mediating Judge or Outside Mediator may
communicate to the assigned Judge or the Court en banc regarding
noncompliance by parties, counsel or Outside Mediators with this
General Order.

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4.

Nothing in Section VIII.A. above shall prevent any party, counsel,
the Mediator, or the Director from discussing with any other
participant in the Program any communication made in connection
with the Program.

5.

Nothing in Section VIII.A. above shall be construed to prevent
parties, counsel, the Mediator or the Director from responding to
inquiries by persons duly authorized by the Court 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.

C.

D.

No Recording. No recording shall be made of any of the mediation,
other ADR option session or any sessions held under the Program, nor
shall parties utilize private reporters or any other type of recording
technology during the Program sessions, unless all parties agree, or unless
the recording is made under non-binding arbitration, or unless the parties
have agreed to binding arbitration.

E.
IX.

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.

Confidentiality Agreement. The Mediator may ask the parties and all
persons attending the mediation to sign a confidentiality agreement.

EVALUATION
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; (c) explore enhancements or
changes to the Program; and (d) compare components or elements of the Program.

X.

SANCTIONS
If a party or counsel 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.

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