Synopsis: Supreme Court Rule 17 now permits individual judges to set up alternative dispute resolution programs for civil cases and requires lawyers to advise clients of such programs. This article surveys the reaction of several judges and attorneys to these and other recent changes in the rule.

Missouri Supreme Court Rule 17, more than eight years old and rarely used, finally has some teeth. Rewritten by a committee of judges, lawyers, mediators and law professors, and renamed "Alternative Dispute Resolution," the new version of Rule 17 became effective July 1, 1997. According to one Supreme Court of Missouri judge, the prior version of Rule 17, entitled "Voluntary Early Dispute Resolution" and adopted November 30, 1989, achieved significant use only in Jackson County and even there its use was limited. Because members of the state high court wanted to achieve more widespread use of the rule, the judge stated, the Court commissioned the committee to study and revise it. After the committee completed its work, the Court issued the new version of the rule on October 22, 1996. For convenience, this article refers to the current version of the rule simply as "Rule 17" and to the prior version as "prior Rule 17."

Members of the committee believe the new version of the rule has "teeth."¹ Does it? Will these "teeth" accomplish the Supreme Court's goal of greater use of the rule? In November and December, 1996, I conducted telephone interviews with one member of the Supreme Court of Missouri, four circuit judges, one associate circuit judge, six practicing attorneys, and one law school professor. The trial court judges and the attorneys were from geographically diverse metropolitan and rural areas.

The judges were nearly unanimous in the belief that the new rule will be beneficial and that they will use it. The practicing attorneys were more skeptical: greater use of the rule will come slowly and only as a result of trial court orders or a change in attitude of a significant number of members of the local bar. Because several persons I spoke with requested anonymity, I identify none in this article.

The purpose of the revised version of the rule is similar to that of the prior version. Rule 17 is intended to provide ADR procedures:

[F]or disposition before trial of certain civil cases with resultant savings in time and expenses to the litigants and to the court without sacrificing the quality of justice to be rendered or the right of the litigants to jury trial in the event that a settlement satisfactory to the parties is not achieved through alternative dispute resolution.

Rule 17.01(a). Under prior Rule 17, the purpose of a circuit court's ADR program was "to foster early, economical, fair and voluntary settlement of lawsuits without delaying or interfering with a party's right to resolve a lawsuit by trial." Rule 17.01 (repealed).

Despite the similarity of purpose of the two versions, the Supreme Court has substantially revised the method by which the purpose is to be achieved. This article focuses on some of the more significant changes, those that put "teeth" into the rule, and the impact of those changes on the practice of law. The changes can be characterized as answering the questions, "Who may order cases to ADR?" "When?" and "What is the added responsibility of the lawyer?"

Who?

Rule 17.01(a) permits "[a]ny judge by order or any judicial circuit by local court rule [to] . . . establish an alternative dispute resolution [ADR] program . . . ." Under the prior version, only a judicial circuit could establish an ADR program; now an individual judge may do so. Rule 17.01(b) identifies and describes a non-exclusive list of ADR methods: arbitration, early neutral evaluation, mediation, mini-trial, and summary jury trial.

When?

Rule 17.03(a) expressly authorizes a judge to order a civil action to ADR "upon the motion of any party or by the court." Under the prior version of the rule, initiation of and participation in ADR was wholly voluntary; a judge could not order a lawsuit to ADR solely because one party requested it or simply because the judge thought ADR was advisable. Actions referred to ADR can return to the traditional litigation process; Rule 17.03(b) permits counsel to opt out of ADR under certain circumstances. However, if there are compelling circumstances, the court may order the matter back to ADR.

The Lawyer's Role

The revised rule retains the requirement of the prior rule that the court notify the parties about dispute resolution services. "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 the summons and petition." Rule 17.02(a). Prior Rule 17.03(a) contained nearly identical language.

New to the rule, however, is this mandate: "[C]ounsel shall advise their clients of the availability of alternative dispute resolution programs." Rule 17.02(b). The rule is silent about when counsel must notify clients; presumably, notification should precede filing a petition, the act that triggers the circuit court's responsibility to provide notice. Notification by counsel after the filing of the petition would simply duplicate the court's notification under Rule 17.02(a). An alternative reading of Rule 17.02(b) is that it requires counsel to pass on to the parties the court's notification.

The Judges Look at Rule 17

Members of the bench with whom I spoke are optimistic regarding the potential impact of the rule's revisions. According to the Supreme Court judge I interviewed, the Court charged the committee with the task of reviewing Rule 17 because it wanted to "breathe new life into the old rule." Because the committee that evaluated the rule and proposed the new version included skeptics as well as people who wanted to increase the use of ADR techniques, many policy questions were considered, a discussion essential to the success of any new rule, the judge told me. The Court also felt any new rule needed the strong support of trial judges. The Supreme Court judge believes the rule now gives judges a tool to move cases on their dockets more quickly, an important consideration with the recently implemented Administrative Rule 17 time standards.

Generally, the trial judges believe the rule will be helpful to them and once they become more familiar with the revised version, they will utilize ADR more often. One judge said he plans to "take a good hard look at ADR as a possible solution for my huge dockets." The four circuit judges and one associate circuit judge estimated that 95% of the cases on their dockets are settled before trial, but settlement often is just before trial, sometimes as late as "on the courthouse steps the morning of trial." One judge noted that the high percentage of cases that settle makes it obvious that lawyers are negotiating. Remarking on the point in the process at which many cases are settled, another judge observed that, for a variety of reasons, lawyer negotiations rarely are effective until the lawyers feel the pressure of a trial date. Because most cases ultimately are settled and individual judges will be empowered under the revised rule to order a case into ADR, some of the judges I spoke with said they plan to use the revised rule at an early stage. These judges believe that if parties do participate in ADR, settlement will occur much earlier in the process, thereby saving time and money for all concerned. More than one of the judges pointed out that even failed settlement negotiations can help focus issues for trial, which can speed the resolution process.

There was no consensus among the trial judges about the types of cases best suited for ADR. Most of the judges from metropolitan areas believed ADR would be beneficial in all cases, but especially so in commercial disputes. Several judges said that although they would consider ADR in every case, they would actually order it only after a case-by-case evaluation, basing their decisions as much on the identities of the lawyers as on the types of cases. Most of the trial judges stressed that all parties must be willing to participate in ADR for it to work.

There was a distinct difference of opinion among several judges about the effectiveness of ADR in domestic relations cases. Some believe it is effective in forcing parties to begin to communicate about crucial issues that need private party resolution rather than a court ruling. However, at least one judge believes ADR is not effective in domestic relations cases because the issues are too emotion-laden and it is difficult to get the parties to open up enough to discuss their dispute.

One judge, who said he plans to order every case in his circuit into ADR, especially likes the requirement of Rule 17.02(b) that counsel advise their clients about the availability of ADR programs. He believes this information is not now being effectively discussed with clients. He theorized that if clients learn more about ADR and the time and money it might save them, they will want to participate in ADR relatively early in the process.

In response to a question about how members of the bar will react to the new version of the rule, the judges' opinions varied depending on their geographic location and how active the local bar associations have been in presenting information to the lawyers. Most of the judges felt that, with implementation of the revised rule, judges and lawyers need education about ADR methods and which is most appropriate in a given situation. More than one judge commented that many lawyers, particularly older, seasoned litigators, might not want to change their approach to handling a lawsuit. However, the judges suggested, all members of the bar should look closely at the trend toward ADR in light of the revised rule and the fact that many insurance companies want their lawyers to participate in ADR to lower costs. Several judges mused that it will take time to make changes because, as one judge phrased it, the "culture of the bar" will have to change, not just the attitudes of a few lawyers.

The Lawyers' View of Rule 17

In contrast to the near unanimity among the judges, the lawyers were split in their assessments of the effectiveness of ADR in general and the need for Rule 17 in particular. There appeared to be no pattern among the lawyers based on plaintiff or defense orientation or even among members of the same firm. However, a majority of the lawyers were skeptical. One member of a litigation firm with considerable experience with informal settlement negotiations said he had participated in structured ADR processes two or three times; each attempt was not only unsuccessful but seemed to erect barriers to additional settlement negotiation. Another lawyer, one with substantial ADR experience, said he believes "good lawyers who've honestly evaluated their cases can usually come to a reasonable settlement . . . ." He acknowledged that a mediator can be helpful in reaching a settlement when the case has been misevaluated by an attorney or when a client has unreasonable expectations. One area of unanimity among the lawyers was that if parties are not willing to settle, no form of ADR will be successful.

There was little consensus among the lawyers on the impact Rule 17 will have on their practices. Most of the lawyers, like the trial judges, agreed that the impact will depend on their location and the attitudes of the local bench and bar. Although all lawyers interviewed are experienced in negotiation as a part of the litigation process, many felt they lacked experience with other ADR processes to anticipate the effect of the revised version of the rule. One attorney believed it would have little impact because there is "no local push for ADR," although that might change once the revised version has been effective for a while.

Another lawyer said there would be little effect on his practice because of his belief that any agreement reached is non-binding and that a lawyer forced into some form of non-binding ADR by a judge, client, or other party would not actively participate in the process, resulting in a loss of time that could have been spent preparing for trial. This lawyer's beliefs illustrate some commonly held misconceptions about the rule.

Under the rule, ADR processes are non-binding "unless the parties enter into a written agreement as provided in Rule 17.06(c). A written agreement shall be binding to the extent not prohibited by law."² Rule 17.06(c) provides, "Settlement shall be by a written document setting out the essential terms of the agreement executed after the termination of the alternative dispute resolution process." Moreover, under Rule 17.07, discovery may proceed in an action referred to ADR as in any other action. It is true that a party or attorney may opt out of ADR, but only under certain circumstances. An attorney who concludes ADR has no reasonable chance of being productive may, after conferring with his or her client, all other attorneys, and unrepresented parties, opt out by advising the court in writing within 30 days of the order of referral to ADR. However, the court may again refer the matter to ADR if there are "compelling circumstances, which shall be set out by the court in any order."³

Despite differing personal views about the benefits of Rule 17 and ADR, the lawyers generally agreed that the revised rule might force lawyers to utilize ADR more often. Moreover, some theorized that, as more courts order ADR and law schools continue to emphasize ADR in the curriculum, members of the bar will acquire ADR experience and find it beneficial for everyone in terms of expenditures of time and money preparing for trial.

A Law School Professor's Opinion

One member of the academic community sees the revised version of the rule as designed to create more ADR activity. This law school professor believes the most important aspect of the new rule is the authorization of individual judges to order cases into ADR. Because this change is so significant, he believes judges will need education concerning the advantages and disadvantages of the various forms of ADR so they can refer cases into the appropriate process. Likewise, he said, lawyers will need education to understand the various forms of ADR in order to better represent their clients. Education will be essential in the transition to greater utilization of ADR, but the transition process will take time. As some of the judges and lawyers noted, the "culture" will need to change.

Educational Opportunities

Education about ADR and Rule 17 is becoming more widely available. In the last year or so, most of the state's metropolitan area bar associations have been actively disseminating ADR information in various formats. The Missouri Bar has been educating lawyers statewide, including a half-day CLE program, "ADR: Focus on Mediation," presented in St. Louis, Kansas City, and Springfield. The program included specific instruction about Rule 17 and included presentations by judges who are implementing the rule. Future lawyers also are learning about ADR and Rule 17. ADR courses are now common in law school curricula.

Conclusion

Does Rule 17 now have "teeth?" Most of the individuals I interviewed believe it will have some type of impact because an individual judge now can order parties into ADR. The effect cannot be predicted with certainty, but it is clear that if the rule change is to accomplish its purpose, the attitudes of many will have to change. This change will not be easy for those who are comfortable with the status quo. However, the utilization of ADR in Missouri might have a promising future because the new rule's "teeth," combined with the emphasis on ADR in law schools, might be the force that begins to change the "culture." If judges order disputes into ADR in the early stages of litigation, lawyers see effectiveness in the ADR processes, and clients achieve satisfactory results, ADR will enjoy more widespread use and the new rule will help meet its goals of a more efficient and effective legal system.

Endnotes

1 Stephanie Skinner, Judges Given Power to Order Parties to ADR, MISSOURI LAWYERS WEEKLY, Nov. 4, 1996, at 1.

2 Supreme Court Rule 17.01(d).

3 Supreme Court Rule 17.03(b).

Ms. St. John-Ritzen, a 1966 graduate of Barnes Hospital School of Nursing, worked as a registered nurse in staff, educational, and management positions for 18 years. She received a Bachelor of General Studies degree in 1986 from the University of Missouri-Columbia. Prior to entering law school, Ms. St. John-Ritzen taught English at Drury College and worked as a nurse consultant for the Springfield law firm of Bruer, Wooddell & Bates, P.C. She graduated from the University of Missouri-Columbia School of Law in May 1998.

©1998, Cathie St. John-Ritzen