Ky. Sup. Ct. Order 2022-04 (front matter)

Supreme Court of Kentucky

2022-04

ORDER

In Re: Adoption of Section XIII, Rule 99 and Rule 100 of the

Kentucky Rules of Civil Procedure

100 of the Rules of Civil Procedure (CR) and replaces in their entirety the Model

Mediation Rules (Administrative Order 1999-01) and Administrative Procedure

Part XII, Mediation Guidelines for Court of Justice Mediators (Administrative

XIII MEDIATION RULES

1. These rules are adopted pursuant to the constitutional authority granted

to the Supreme Court and consistent with Kentucky Revised Statutes

(KRS) 454.011 and 446.010.

2. The Supreme Court finds that under some circumstances the process

known as mediation may provide an efficient and cost-effective

alternative to traditional litigation, and, further, that the wise and

judicious use of mediation may benefit litigants.

3. Mediation allows parties an opportunity to resolve their issues through

an informal process independent of, and outside of, the court process. A

mediator serves as a neutral third person who encourages and assists

settlement by facilitating communication between the parties.

4. These Rules shall be followed in any mediation ordered by the trial court.

Parties are encouraged to follow these Rules in mediations not ordered by

the trial court. However, nothing in these Rules shall prohibit parties

from resolving disputes through other methods.

5. Mediation shall not be ordered in any case where one party may pose a

risk of harm to other participants, and, in no event, shall mediation be

ordered in conflict with KRS 403.036.

6. While the Supreme Court intends that the mediation process remain

fully independent of, and outside of, the court process, a trial court

retains its discretion to enforce its order to mediate; provided, however, a

trial court shall not reallocate the cost of mediation after the mediation is

completed and shall not fine, sanction, or penalize any party, or

reallocate the cost of mediation because a case is settled after the court-ordered mediation.

7. No local rule, practice, procedure, standard order, or other policies of any

trial court may conflict with or controvert these Rules.

Mediation is an informal process in which a neutral third person called a

mediator facilitates the resolution of a dispute between two or more parties.

The process is designed to help disputing parties reach an agreement on all or

part of the issues in dispute. Decision-making authority remains with the

parties, not the mediator. The mediator assists the parties in identifying issues,

fostering joint problem-solving, and exploring settlement alternatives.

At any time on its own motion or on motion of any party, the court may refer a

case or portion of a case for mediation. Courts shall not, however, follow any

blanket policy or practice of referring all cases, or any particular type of case,

to mediation, nor any blanket policy or practice requiring completion of

mediation as a pre-condition to assigning a trial date. In each case, the court

shall take the following factors into consideration:

1. The stage of the litigation, including the need for discovery, and the

extent to which it has been conducted.

2. The nature of the issues to be resolved.

3. The value to the parties of confidentiality, rapid resolution, or the

promotion or maintenance of on-going relationships.

4. The willingness of the parties to mutually resolve their dispute.

5. Other attempts at dispute resolution.

6. The ability of the parties to participate in the mediation process including

the ability of any party, counsel or required representative to participate

in virtual mediation.

7. The cost to the parties.

Referral of a case to mediation shall not operate as a stay of discovery or other

proceedings unless otherwise ordered by the court or agreed to in writing by

the parties.

Within fifteen (15) days of referral, the parties shall agree on a mediator or a

mediation service. If the parties cannot agree, they shall notify the court. Only

if the parties cannot agree on a mediator, the court will select a mediator who

is recognized as a mediator in civil actions.

The mediator shall be compensated at the rate agreed between the mediator

and the parties if the mediator is chosen by agreement. If the mediator is

appointed by the court, the fee for the mediator shall be no greater than the

mediator’s standard rate as a mediator. Unless otherwise agreed by the parties

or ordered by the court, the parties shall equally divide the mediator’s

professional fees.

1. The mediation conference shall be held at a time and place agreed

between the parties. If the parties cannot agree, the court may direct the

time or place of mediation.

2. The mediator may confer with the parties or their counsel prior to the

mediation conference for the purpose of establishing procedures for the

mediation conference and such other reasons the mediator deems

appropriate to advance the process. These conferences may be ex parte at

the mediator’s discretion.

3. The mediator may require the parties to submit a confidential statement

of the case or other materials that the mediator reasonably believes

appropriate for efficiently conducting the mediation conference.

1. Unless otherwise ordered by the court or explicitly agreed to by the

parties, the parties and their counsel, if any, shall attend the mediation

conference.

2. If a party is a public entity, it shall appear by the presence of a

representative with full authority to negotiate on behalf of the entity and

to recommend settlement to the appropriate decision-making body or

officer of the entity.

3. If a party is an organization other than a public entity, it shall appear by

the presence of a representative, other than the party’s counsel of record,

who has full authority to settle.

4. If any party is insured for the claim in dispute, that party shall also be

required to have its insurance carrier(s) present by the presence of a

representative of the insurance carrier(s) who is not that carrier’s outside

counsel; this representative must have full settlement authority. A court

may not restrict a carrier representative from having telephone or other

communication to seek additional authority.

Unless expressly ordered by the court, a party who is represented by

counsel and the presence of a representative of the party’s insurance

carrier is not required to be present for the mediation.

5. Full authority to settle, or full settlement authority, means that the

representative has authority to negotiate settlement on behalf of a

particular party, organization, entity or insurance carrier. It does not

require authority to settle for any specific amount or terms.

6. Unless otherwise agreed by the parties or ordered by the court, a

mediation may be entirely virtual, or the presence of any attendee may be

virtual.

1. If the court designates the mediator, that mediator shall notify the court

promptly by written notice to the court and the parties when a case is

not accepted for mediation.

2. At any time after a case has been accepted, the mediator may refer it

back to the court for good cause, which shall be by written notice to the

court and the parties.

3. If a case is settled prior to or during mediation, the attorneys shall

promptly notify the court and prepare and submit to the court an order

reflecting the fact of settlement as in any other case.

4. If some but not all of the issues in the case are settled during mediation

or if agreements are reached to limit discovery or on any other matter,

the parties shall submit a joint statement to the court enumerating the

issues that have been resolved and the issues that remain for trial. This

statement shall be submitted within 10 days of the termination of

mediation.

5. At the conclusion of cases accepted for mediation, the attorneys shall

promptly report to the court in writing the fact that the mediation

process has ended. If the parties do not reach an agreement as to any

matter at mediation, their attorneys shall promptly report the lack of an

agreement to the court. The attorneys by unanimous agreement, or the

mediator with explicit unanimous consent of the parties, may report to

the court identifying those matters which, if resolved or completed, would

facilitate the possibility of settlement.