In the beginning¹ there was trial by jury.² The Authorities looked down and saw there was chaos in the court system³ and separated the darkness of the courtroom from the light of arbitration and there was created the Uniform Arbitration Act.⁴ The Authorities looked at their creation and separated the murky waters of litigation from the firmness of other forms of dispute resolution and there was created confidentiality in dispute resolution processes.⁵

Alas, there was no life in these alternative dispute resolution (ADR) processes, so the Authorities created Rule 17.⁶ Then the Authorities looked down and saw there was still chaos in the court system⁷ and the Authorities created Administrative Rule 17.⁸ Again, the Authorities looked over their creation and saw that it was not complete.⁹ And so the Authorities took from the rib of Administrative Rule 17 and the soul of the original Supreme Court Rule 17 and fashioned the new, current Supreme Court Rule 17.¹⁰ And the Authorities looked over their creation and saw that it was very good.¹¹

Now that we have taken a short look back, this article will address the practical and legal issues that Missouri attorneys will face as new Missouri Supreme Court Rule 17, effective July 1, 1997 (hereinafter referred to as "the rule" or "Rule 17"), becomes embedded in our legal culture. Rule 17 is divided into seven sections (17.01-17.07) which I will review in numerical order.

Rule 17.01(a): Its Purpose, its Reach and its Intended Impact on the Judicial System

By way of preface, consider that Rule 17 is neither visionary nor cutting edge. Rather, it recognizes the logical progression of the development of ADR in this and other states.¹²

Rule 17.01(a) has created throughout the many courthouses in Missouri an independent dispute resolution system, as it provides for the adoption of an ADR rule (with attendant programs) by any judicial circuit and also allows an individual judge within the same circuit to "establish an alternative dispute resolution program. . . ."¹³ It is conceivable (and in some venues probable) that a circuit would establish a program and a judge within the circuit would develop her own program if she believed that a local rule did not go far enough (or too far!).

Rule 17 was created "to provide an alternative mechanism for the resolution of civil disputes, except those subject to Supreme Court Rules 88.02 to 88.08."¹⁴ The just cited sections of Rule 88 touch upon issues concerning child custody. This limiting language would not prevent a court from utilizing Rule 17 to resolve other family law issues, such as property division and maintenance.¹⁵

By adopting Rule 17, the Supreme Court of Missouri has thrown open the doors of the courthouse to new and innovative ways to achieve "savings in time and expenses to the litigants and to the court without sacrificing the quality of justice to be rendered. . . ."¹⁶

Rule 17 offers an alternative to trial and is not intended to replace the right to "jury trial in the event that a settlement satisfactory to the parties is not achieved through alternative dispute resolution."¹⁷ Accordingly, ADR should be viewed by counsel as a source of additional arrows in the quiver of available settlement techniques.

Rule 17.01(b,c,d): Definitions, Diversity and the Requirement That ADR Be Non-Binding

At Rule 17.01(b), the Court adopted commonly accepted definitions for the five ADR processes described in the rule.¹⁸ The five processes identified in the rule are arbitration,¹⁹ early neutral evaluation,²⁰ mediation,²¹ mini-trial²² and summary jury trial.²³ These five progrms are each described in language that indicates that they are non-binding. Importantly, the Court did not limit ADR choices to these five alternatives. Instead, the Court encouraged each circuit "to develop other alternative dispute resolution programs that will meet the needs of the parties, the circuit and the community."²⁴ Flexibility is now a court approved goal.²⁵

The one caveat to program development is that they each "shall be non-binding unless the parties enter into a written agreement. . . ."²⁶ This is consistent with the stated objective of preserving the right to jury trial.²⁷

Rule 17.02: Generic and Personal Notice

Rule 17.02(a) provides that notice regarding ADR be given to plaintiff at the time of the filing of the suit and to defendant at the time of service of process.²⁸ This author does not believe that the Rule 17.02(a) notice will be particularly effective.²⁹ Invariably, plaintiffs counsel will file the petition and the client will probably never see the notice. In the case of a corporate defendant and its registered agent, the notice may never reach the proper decision maker.³⁰ Further, it is doubtful that an individual defendant served with a lawsuit will worry about the finer points of ADR at the moment he is being sued for everything he owns. Recognizing these issues, provision is also made in Rule 17.02(a) that "[o]ther means of providing notice may be designated by local court rule."³¹

Rule 17.02(b) requires counsel to "advise their clients of the availability of alternative dispute resolution programs."³² So, even though the petition or summons may not reach the hands of the decision maker, counsel has a professional duty to advise the client about ADR. Note that the rule identifies no specific time when counsel is to advise the client, implicitly recognizing that ADR considerations can vary according to the nature of the case. For example, the simple chiropractic, rear end automobile case should require almost no discovery and accommodate an early mediation schedule, while a complex product liability case might require an agreed amount of discovery before it is an appropriate candidate for ADR.³³

Rule 17.02(b): Disciplinary Implications

Will the failure to notify a client of the availability of ADR subject an attorney to disciplinary action for violation of this rule? Our disciplinary rules already require an attorney to assure that the client is "reasonably informed about the status of a matter. . . ."³⁴ Further, counsel "shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions. . . ."³⁵ The decision as to whether a case should be settled or tried always resides with the client. How best to achieve settlement requires the timely guidance of counsel. Compliance with Rule 17.02(b) would seem consistent with the purposes of these disciplinary rules. Perhaps, as ADR matures in Missouri, the Supreme Court will consider creating a new, independent, ethical directive.³⁶

Rule 17.03: Compulsory or Voluntary, You Decide

Under the previous rule, the entire process could be initiated and sustained only by the parties.³⁷ Under the current Rule 17, if the parties agree to participate in ADR, "[a] civil action shall be ordered to alternative dispute resolution. . . ."³⁸

Of the several major revisions appearing in Rule 17, the most significant may be found at Rule 17.03(a) and 17.03(b). Now for the first time³⁹ in a three-step process, the court may initiate and sustain an ADR referral.⁴⁰ Following the court referral to ADR (step one), any party, pursuant to 17.03(b), may opt out (step two), "[i]f . . . after conferring with their respective clients, all other attorneys, and unrepresented parties, conclude that referral to alternative dispute resolution has no reasonable chance of being productive,"⁴¹ and by advising the court in writing within 30 days of the referral order.

The third step occurs after the opt out. Then the court may still order the opting out party to proceed with ADR, if the court determines that there are "compelling circumstances"⁴² that justify continued participation in ADR. If there is any compulsion in the rule, it lies here. One must remember that the court is ordering only participation in a process and not a particular result. What "compelling circumstances" are could include the daddy rule,⁴³ the pornography rule,⁴⁴ or much more classical reasons such as judicial economy, case administration,⁴⁵ and client education.⁴⁶

Rule 17.03: Local Option47

The rules balancing act of compulsory versus voluntary continues successfully by leaving both selection of the ADR process⁴⁸ and the neutral⁴⁹ up to the parties and by allowing the parties to participate in programs independent of the rule.⁵⁰ If the court becomes involved in neutral selection (when the parties can not agree), the parties may still agree on another neutral before or after selection by the court.⁵¹ Additionally, the parties may select a neutral from other than those on the court maintained list.⁵²

The Court has also left the decision to each circuit to adopt local rules for assuring impartiality, removal, and withdrawal of neutrals.⁵³ Again, our disciplinary rules provide some direction, for just as a judge should recuse himself "in a proceeding in which the judges impartiality might reasonably be questioned,"⁵⁴ so should the early neutral evaluator, mediator and arbitrator. Other jurisdictions have encountered problems where a neutral (judge) joins a large firm involved in litigation in which the judge participated while on the bench.⁵⁵ The rule is silent on the issue of neutral immunity from suit, though at least quasi-judicial immunity has been found in other states.⁵⁶

Unanswered at this hour is whether a case assigned to ADR under Rule 17 will be a taxable cost⁵⁷ and, if so, how the costs will be divided between the parties.⁵⁸ A problem will arise if one party refuses (or is financially unable) to pay the neutral and the other party refuses to pay the difference.⁵⁹ Again, pressure can be applied by the court to coerce the reluctant (but financially viable) party into paying. If the resistance evidences a consistent course of action by counsel (or an insurer) over several cases, that is one thing, but if it is the occasional and/or exceptional reaction, then it should be treated by the court as an indication that the process may be doomed.

To accommodate the needs of each venue, scheduling directives are left to the local circuit.⁶⁰ The old saw that timing is everything could make ADR in general, or in specific instances, a joke if the cases are not referred at the right time. "Too soon" is the mantra of mediators and defense counsel who find a pending summary judgment motion a serious impediment to negotiations. The bench and the bar will need to work together to assure timeliness in referrals.⁶¹

Rule 17.04: Qualification of Neutrals

Rule 17.04 is a duplication of the previous rule. The rule requires a neutral to have "appropriate training or equivalent experience in conducting the type of alternative dispute resolution service the individual or organization provides."⁶² The rule mandates at least 16 hours of training for a mediator and at least four hours of training for those providing other services.⁶³

Rule 17.05: Reporting Requirements

The Court resolved to keep the results of the dispute resolution process out of the trial courts view. The rule provides that the trial court should learn only that "the parties were successful in resolving their dispute or that issues remain open. . ."⁶⁴ Furthermore, "[a]bsent the written agreement provided in Rule 17.06(c), any award or evaluation shall be reported only" to the litigants and counsel and then shall only serve as a guide for resolving the case and "shall be inadmissible in any court."⁶⁵ The Court placed no over-riding time restraints on resolution of the referral, but only that the court be advised "within ten days of the termination of the alternative dispute resolution

process. . . ."⁶⁶

Rule 17.06: Confidentiality67

The most likely source of conflict between the parties will probably arise over the interpretation and application of Rule 17.06. Rule 17.06(a) essentially tracks the language of the earlier voluntary rule⁶⁸ and Chapter 435.014(2), RSMo 1994. Rule 17.06(a) provides that an ADR process undertaken pursuant to the rule shall be considered settlement negotiations. Further,

Any communication relating to the subject matter of such dispute made during the alternative dispute resolution process by a participant or any other person present at the process shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such process shall be admissible as evidence or subject to discovery, . . .⁶⁹

The above language is so broad that an agreement to mediate (which dictates payments, obligations, etc.) may not be discoverable, as it constitutes part of the setting up process.⁷⁰ While Missouri has yet to define these boundaries, note that other states have created exceptions to ADR confidentiality for child abuse⁷¹ and to prevent a crime.⁷²

Many questions regarding confidentiality that were never resolved under the previous Rule 17 and Chapter 435.014(2), RSMo 1994, will eventually need to be answered. These questions include:

1. Who owns the privilege -- the party, the mediator,⁷³ the court, or the public? Can the participants (mediator included) agree to remove the cloak of confidentiality?⁷⁴

2. If the mediator divulges a confidence constituting mediator malpractice, will such an action be discoverable?⁷⁵

3. Is the definition of confidentiality so broad that participants are banned from disclosing anything said at the mediation? (That is, is the information protected from the bar room to the court room?)⁷⁶

4. If an attorney or mediator violates an ethical rule during a mediation, will the Office of Chief Disciplinary Counsel be able to open up the mediation?

5. What is meant by being "present"⁷⁷ at an ADR process? Does it include phone calls and video conferencing, as well as a person who supplies a written affidavit?

6. Although the confidentiality language of Rule 17.06(a) is broad in scope, still "no fact independently discoverable shall be immune from discovery by virtue of having been disclosed in such confidential communication."⁷⁸ Thus, the broad coverage of confidentiality is limited by common sense. What may be considered independent will depend on the creativity of counsel. Essentially, it means that no one can be asked in court what was said at a mediation, but facts are facts,⁷⁹ even if learned at a mediation. If the fact is independently discoverable, it may come into evidence.

Rule 17.06(b) holds that a Rule 17 provider shall not "be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the alternative dispute resolution process."⁸⁰ While "setting up" may extend the time backwrd from which there can be no discovery, "conducting" would end at a point "after the termination"⁸¹ or "following the conclusion"⁸² of the process.

Legal guns may sound the loudest when trying to resolve the problems arising over the interpretation of Rule 17.06(c), which provides that "[s]ettlement shall be by a written document setting out the essential terms of the agreement executed after the termination of the alternative dispute resolution process." This means that a verbal agreement entered into after the conclusion of a mediation would not be enforceable in a Rule 17 ADR situation, when it would be in a non-rule situation. When the moment of termination occurs will be as hotly debated as issues surrounding abortion. Accordingly, the savvy attorney will always demand an ending ceremony to tag the written agreement outside the ADR process.⁸³

Further complicating the application of Rule 17.06(a) is the language of Rule 17.01(d), which provides that "[a]ll alternative dispute resolution processes shall be non-binding unless the parties enter into a written agreement as provided in Rule 17.06(c)" (emphasis added).⁸⁴ Any agreement (verbal or written) entered into between the parties during a court sanctioned ADR process (such as an agreement by the parties to modify a court ordered early neutral evaluation into a binding arbitration) will likely be excluded by Rules 17.06(a) and/or 17.01(d). To avoid this problem, counsel should reduce all agreements to writing, and (1) consider asking the court to ratify the agreement before proceeding with the process; or (2) provide language within the agreement to make it discoverable independent of the Rule 17 confidentiality clauses;⁸⁵ and (3) have the neutral temporarily terminate the process, execute the agreement outside of the process, and then resume the process.

Interestingly, protections granted to the neutral from subpoena by 17.06(b)⁸⁶ were partially taken away in Rule 17.06(d). This section allows the neutral to be subpoenaed in an action to:

[E]nforce the written settlement agreement reached following the conclusion of the alternative dispute resolution process for the limited purpose of describing events following the conclusion of the alternative dispute resolution process.

Rule 17.07: Discovery

Finally, Rule 17.07 authorizes discovery to continue contemporaneously with the ADR process.⁸⁷ There is no reason that the parties cannot apply to the court to limit or modify discovery pending participation in ADR.

Conclusion

Although the history of ADR in Missouri is relatively brief, the future of ADR in Missouri is bright and ADR should become an integral part of the legal landscape. The multi-door courthouse, envisioned by Professor Frank Sanders, has finally come to Missouri.⁸⁸ Still, the thoughtful practitioner will be careful to chart a prudent course in an area that has yet to be fully explored.⁸⁹

And it came to pass after the flood of litigation that the Authorities resolved never to allow the courts to be inundated again. And ADR grew and multiplied in the fullness of time.⁹⁰

Endnotes

1 Holy Bible, Genesis 1:1.
2 U.S. Const. Amend. VII. "That the right of trial by jury as heretofore enjoyed shall remain inviolate;" Mo. Const. Art. I, § 22(a). Fortunately, the Lateran Council condemned trial by ordeal in 1215; George & Frances Gies, Life in a Medieval Castle, 41 (174).
3 Just kidding! Where is judicial combat when we need it?
4 Uniform Arbitration Act, Chapter 435.350 et seq. (1980).
5 Chapter 435.014(2), RSMo 1994.
Arbitration, conciliation and mediation proceedings shall be regarded as settlement negotiations. Any communication relating to the subject matter of such disputes made during the resolution process by any participant, mediator, conciliator, arbitrator or any other person present at the dispute resolution shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such proceedings not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery.
6 Mo. Sup. Ct. R. 17 (1989) (repealed 1996) (effective until 1997).
7 Still, just kidding! What could be better than the "love-day" concept in feudal times, see George and Francis Gies, Life in a Medieval Castle, 161 (1974).
8 Mo. Sup. Ct. R. 17 (Administration) (1992).
9 Adapted from the Creation Story.
10 Mo. Sup. Ct. R. 17 (1996) (hereafter "Rule 17" or "the rule").
11 May be not perfect, but certainly good! This article will suggest some areas for improvement. I believe that overall the rule will be of great benefit to the bench, bar and the public.
12 To name just a few: See Ind. Sup. Ct. R. 2 (effective 1997); Ariz. Rev. Stat. Ann. § 12 (West 1997); Florida Rules of Civil Procedure, Rule 1.700 et seq. (1998); Tex. Civ. Prac. & Rem. Code Ann. §§ 154 (West 1997). N.C. Gen. Stat. § 7A-38 (1995). The American Arbitration Association has a complete listing of arbitration statutes at its web site: http://www.adr.org/general_statutes.
html.
13 Rule 17.01(a).
14 Rule 17.01(a).
15 Qualifications for mediators engaged in domestic cases are substantially different from those involved in civil litigation. Twenty hours of training are required for mediators engaged in domestic relation disputes to receive Missouri Rule 88 accreditation. Local court rules often require additional training in this area. Rule 17 mediators are only required to receive 16 hours of training. The Supreme Court of Missouri may want to consider revisions in this area.
16 Rule 17.01(a). ADR will help alleviate at least some of the demands made upon the court system.
17 Rule 17.01(a).
18 Rule 17.01(b) includes arbitration, mediation, early neutral evaluation, mini-trial and summary jury trial. Mediation is defined as "a process in which a neutral third party facilitates communication between the parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties;" Rule 17.01(b)(3). One could argue that non-binding arbitration should not be called arbitration.
19 Rule 17.01(b)(1).
20 Rule 17.01(b)(2).
21 Rule 17.01(b)(3).
22 Rule 17.01(b)(4).
23 Rule 17.01(b)(5).
24 Rule 17.01(c).
25 For example, courts would presumably be free to set up mediated settlement days or three-member arbitration panels. See Ill. Sup. Ct. R. 86-93 (1967), which authorizes local courts to set up arbitration panels whose decisions are binding unless rejected. Others, such as Professor Frank Sanders and Professor Leonard Riskin, use the phrase "Appropriate Dispute Resolution" and that is what we should be seeking.
26 Rule 17.01(d).
27 See footnote 17, supra.
28 Rule 17.02(a) provides that "a notice of alternative dispute resolution services shall be furnished to all parties to the action. The notice shall be provided to the party initiating the action at the time the action is filed. All responding parties shall receive the notice with summons and petition."
29 While Rule 17.02a) may not be perfect, it does put ADR in play.
30 The summons and petition may be served on a low level manager and then forwarded directly to outside counsel without passing through the hands of the CFO or CEO, who may better understand the opportunities that ADR creates.
31 Rule 17.02(a). The combination of Rule 17.02(a) and 17.02(b) places the responsibility for informing litigants squarely on the shoulders of those who should bear the burden; namely, the judiciary and the bar.
32 Rule 17.02(b).
33 Not specifying the time is logical since each case will have its own time line as to when ADR is most appropriate. Also, allowing counsel to determine the best manner to inform the client makes sense, though when dealing with a difficult client one should always confirm action taken in writing.
34 Mo. Sup. Ct. R. 4-1.4(a).
35 Mo. Sup. Ct. R. 4-1.2(b).
36 "A lawyer as adviser has a duty to advise the client as to various forms of dispute resolution. When a matter is likely to involve litigation, a lawyer has a duty to inform the client of forms of dispute resolution which might constitute reasonable alternatives to litigation." Ga. Rules of Ct. Ann., EC7-5 (effective 1993).
37 Even the title of the previous rule was "Voluntary Dispute Resolution" (emphasis added). See footnote 6, supra.
38 Rule 17.03(a).
39 The reality is that through pressure points the court was always able to send litigants to ADR. For instance, "Need a continuance? How about mediating your next 30 cases?"
40 Rule 17.03(a).
41 Rule 17.03(b).
42 Rule 17.03(b).
43 "Because I said so, thats why." Cited by my father and yours countless times.
44 "I know it when I see it." Mr. Justice Stewart in Jacobellis v. Ohio, 378 US 184, 197 (U.S. 1964).
45 Why not send a complicated case out for an early neutral evaluation or avoid a month long trial with the use of a summary jury trial or mini-trial?
46 Everyone knows what will happen except the plaintiff.
47 Growing up in Oklahoma, local option defined in which county one could buy something more exciting than 3.2 beer. After moving to Missouri, I discovered that local option described first the debate over the sale of fireworks, then Sunday closing laws, and on to gambling and now, finally, ADR. What a state!
48 Rule 17.03(a). If the parties can not agree, then the court may select the process.
49 If the parties cannot agree upon the neutral, then "the court shall select a neutral from individuals or organizations qualified under Rule 17.04." Rule 17.03(c).
50 Rule 17.03(d)(1).
51 Rule 17.03(d)(2).
52 Rule 17.03(d)(3). This author believes that the pool of neutrals should be as large as possible. The parties will then be free to choose from the most qualified individuals. The rule does not address how many neutrals may be appointed in a given case. No limitation need be imposed other than that which is reasonable under the circumstances.
53 Rule 17.03(e). Poly Software International, Inc. v. Su, 880 F. Supp 1487 (D. Utah 1995). In Su an attorney who previously mediated a dispute between plaintiff and defendant could not later represent plaintiff in a factually related dispute.
54 Mo. Sup. Ct. R. 2, Canon 3,D(1).
55 Cho v. Superior Court of Los Angeles County, 45 Cal Rptr. 2d 863 (Cal. Ct. App. 1995). In Cho an entire firm was disqualified because a retired judge who recently joined the firm had previously conducted settlement talks between the two parties.
56 See Wagshal v. Foster, 28 F. 3d 1249 (D.C. Cir. 1994), granting quasi-judicial immunity to a mediator; also Howard v. Drapkin, 271 Cal Rptr. 893 (Cal. Ct. App. 1990).
57 House Bill No. 846, designed to tax ADR procedures as costs, was not reported out of committee during the 1997 Missouri legislative session.
58 Fed. Local Ct. R. 6.03(C)(1) (E.D. Mo.) (effective 1997) (West 1997). The rule provides that one-half of the costs shall be paid by all plaintiffs and one-half by all defendants. If there is a third party-defendant, the costs will be divided in thirds.
59 This is certainly a problem for the neutral who wants to get paid.
60 Rule 17.03(f).
61 See footnote 33, supra.
62 Rule 17.04. 63 See Mo. Sup. Ct. R. 88.05(a)(2). Also Ind. Sup. Ct. R. 2.5, Note 10, supra, requiring 40 hours of training for all mediators. This author suggests that additional initial training is appropriate, along with yearly updates.
64 Rule 17.05(b).
65 Rule 17.05(a).
66 Rule 17.05(b). Compare to Fed. Local R. 6.02 (E.D. Mo.), which requires a date upon which the ADR process shall terminate.
67 For a definitive article on confidentiality see Alan Kirtley, The Mediation Privileges Transition from Theory to Implementation: Designing a Mediation Privilege Standard to Protect Mediation Participants, the Process and the Public Interest, J. Disp. Resol. 1 (1995).
68 See footnote 6 supra at the former Rule 7.06(a).
69 Rule 17.06(a).
70 See Kirtley, at footnote 67, supra, citing statutory exceptions for mediation agreements in Colorado and Washington, at page 42.
71 Compare to Oregon Senate Bill 160 amending ORS 36.110, 36.210 and 135.957, and repealing ORS 36.205, adopted June 20, 1997. A mediator may report child abuse or elder abuse if the mediator is a required reporter.
72 In New Jersey, "[a] mediator has the duty to disclose to a proper authority information obtained at a mediation session on the reasonable belief that such disclosure will prevent a participant from committing a criminal or illegal act likely to result in death or serious bodily harm." N.J. Sup. Ct. R. 1:40-4(b) (Gen. Application) (1992).
73 At Rule 17.06(b), neutrals and service providers are granted protections from being "subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the dispute resolution process." This does not give the neutral the power to stop others from being subpoenaed. At Chapter 435.014(1), RSMo 1994, neutrals are given the same rights, provided that there is a written agreement to mediate.
74 See Ind. Sup. Ct. R. 2.11 (effective 1997), where "[t]he confidentiality requirement may not be waived by the parties, and an objection to the obtaining of testimony or physical evidence from mediation may be made by any party or by the mediators." The Texas statute provides for an in camera process where confidentiality conflicts with other legal requirements to determine whether disclosure or a protective order is appropriate, Tex. Civ. Prac. & Rem. Code Ann. § 154.073(d) (West 1987).
75 Under Rule 17 a mediator could not be sued for violating a confidence. See Ariz. Rev. Stat. Ann. 12-2238B.2 (West 1994), which excludes from the umbrella of confidentiality claims against a mediator.
76 In Paranzino vs. Barnett Bank, 690 So.2d 725 (Fla. Dist. Ct. App.. 1997), plaintiffs pleadings were ordered stricken and her case dismissed for breaching the confidentiality of the mediation.
77 Rule 17.06(a).
78 Rule 17.06(a).
79 I heard Henry Menghini say it first.
80 See footnote 73, supra.
81 Rule 17.06(c).
82 Rule 17.06(d).
83 This should also be done in non-rule situations. See Ryan v. Garcia, 33 Cal. Rptr.2d 158 (Cal. Ct. App. 1994), where an oral agreement reached during the mediation was not enforceable because of the confidentiality statute.
84 Rule 17.01(d)
85 The same problem would also occur if counsel proceeds under § 435.014(2), RSMo 1994: "No admission, representation, statement or other confidential communication made in setting up or conducting such proceedings not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery." The one major difference is that the settlement agreement need not be reduced to writing.
86 See footnote 73, supra.
87 Rule 17.07.
88 L. Ray & A. Clarke, The Multi-Door Courthouse Idea: Building the Courthouse of the Future . . . Today, 1 J. Disp. Resol., 17 (1985).
89 For a discussion of the mediation process, see my favorite author: Michael Geigerman, A Practical Guide To Mediation, 48 J. Mo Bar 460 (1992).
90 Holy Bible, Genesis 9:1.

© 1998, Michael Geigerman

-- The author has for the last several years focused his practice in the areas of mediation and arbitration. He practices law in St. Louis.