M.R. Civ. P. 16B

This rule is applicable to cases filed in the Superior Court and cases

removed to the Superior Court from the District Court.

(a) Applicability. All parties to any civil action filed in or removed to the

Superior Court, except actions exempt in accordance with subsection (b) of this

rule, shall, within 60 days of the date of the Rule 16(a) scheduling order,

schedule an alternative dispute resolution conference which conference shall

be held and completed within 120 days of the date of the Rule 16(a) scheduling

order. By agreement of all parties, reported to the court in writing within

120 days of the date of the Rule 16(a) scheduling order, the time for the

completion of the alternative dispute resolution conference shall be extended

for a period not to exceed 180 days from the date of the Rule 16(a) scheduling

order.

(b) Exemptions. The following categories of cases are exempt from the

requirements of this rule:

(1) Actions under Rule 80D, 80L, and Chapter XIII;

(2) Appeals under Rule 80B or Rule 80C;

(3) Appeals under 36 M.R.S.A. § 151;

(4) Actions for recovery of personal injury damages where the

plaintiff requests exemption and certifies that the likely recovery of damages

will not exceed $30,000;

(5) Actions where the parties have participated in statutory

prelitigation screening or dispute resolution processes including medical

malpractice and Maine Human Rights Act cases;

(6) Actions where the parties certify that they have engaged in

formal alternative dispute resolution before a neutral third party. The

certification shall state the name of the neutral and the date(s) on which formal

alternative dispute resolution conferences occurred;

(7) Actions for nonpayment of notes in mortgage foreclosures and

other secured transactions;

(8) Actions by or against prisoners in state, federal or local

facilities; and

(9) Actions exempted by the court on motion by a party and for

good cause shown but only where the motion seeking exemption is filed within

30 days of the date of the Rule 16(a) scheduling order.

(c) Motions and Discovery. Motions and discovery practice shall proceed

in accordance with these rules while an alternative dispute resolution process

is being scheduled and held.

(d) Neutral Selection and Conference Scheduling.

(1) Promptly after the filing of an answer in the Superior Court or

removal from the District Court, the parties shall confer and select an alternate

dispute resolution process (that is, mediation, early neutral evaluation, or

nonbinding arbitration) and a neutral third party to conduct the process. If the

parties cannot agree on the ADR process, they shall proceed to mediation. If

the parties cannot agree on the selection of a neutral, they shall notify the court,

which shall designate a neutral third party, with experience appropriate to the

nature of the case, from the appropriate roster of court neutrals developed by

CADRES;

(2) Unless the court orders or the parties otherwise agree, fees and

expenses for the neutral shall be apportioned and paid in equal shares by each

party, due and payable according to fee arrangements worked out directly by

the parties and the neutral. Fees and expenses paid to the neutral shall be

allowed and taxed as costs in accordance with Rule 54(f). If any party is unable

to pay its share of the fees and expenses of the neutral, that party may apply for

in forma pauperis status pursuant to Rule 91. If granted, the court may allocate

the fee among those parties who are not in forma pauperis or ask the selected

neutral to undertake the conference on a reduced fee basis. Failing the consent

of the selected neutral to the reduced fee, the court will designate an alternate

neutral from the roster developed by CADRES who will agree to undertake the

assignment on a reduced fee basis or pro bono.

(3) Once the neutral is selected or designated, the parties shall

agree with the neutral on a time and place for the conference. The plaintiff shall

notify the court of the name of the neutral and the time and place for the

conference no later than 60 days after the date of the Rule 16(a) scheduling

order. The conference must be held and completed no later than 120 days after

the date of the Rule 16(a) scheduling order.

(e) Conference Issues. At the alternative dispute resolution conference,

the only required function is to conduct the ADR process selected by the parties.

If at the conclusion of that process and, after a serious effort by the parties,

agreement is not reached on all issues, then the neutral may proceed to a case

management discussion with the parties to try to reach agreement on the

following: (i) identification, clarification and limitation of remaining issues;

(ii) stipulations; and (iii) discovery-related issues;

The neutral should not address case management issues in cases that are

specially assigned or subject to single judge management, except with the

approval of the assigned judge. When case management issues are addressed,

the neutral may not extend deadlines or otherwise modify directives in the

scheduling order set pursuant to M.R. Civ. P. 16(a). An ADR conference need

not be reconvened if, after an initial session, the only remaining issues are case

management issues.

(f) Conference Attendees.

(1) Conference attendees shall include:

(i) Individual parties;

(ii) A management employee or officer of a corporate party, with

appropriate settlement authority, whose interests are not entirely

represented by an insurance company;

(iii) A designated representative of a government agency party

whose interests are not entirely represented by an insurance

company;

(iv) An adjuster for any insurance company providing coverage

potentially applicable to the case, provided that the adjuster

participate in the conference with appropriate settlement

authority;

(v) Counsel for all parties; and

(vi) Nonparties whose participation is essential to settlement

discussions—including lienholders—may be requested to attend

the conference.

(2) The court may impose appropriate sanctions on any party or

representative required and notified to appear at a conference who fails to

attend.

(3) Attendance shall be in person, or in the discretion of the neutral,

for good cause shown, by telephone or video conference.

(g) Conference Documents. If requested by the neutral, five days prior to

the conference, the plaintiff shall provide to the neutral:

-The complaint;

-The answer or other responsive pleading;

-Any pretrial scheduling statement;

-Any pretrial order that may have issued; and

-Any dispositive motions and memoranda that have been filed in

connection with those motions.

(h) Conference Report and Order.

(1) Settlement. If the conference results in a settlement, the parties

shall, within 10 days after the conference, report that fact to the court and

include a proposed order concerning the settlement. The court shall order the

appropriate entry to be made on the docket.

(2) Neutral Report. If the conference does not result in a settlement,

the neutral shall, within 10 days after the conference, file with the court a report

and, if appropriate, a proposed order which indicates any agreements of the

parties on matters such as stipulations, identification and limitation of issues to

be tried, discovery matters and further alternative dispute resolution efforts. If

there are no agreements of the parties, the report shall so indicate. If the

neutral does not file the report, the parties shall prepare and file the report

indicating their points of agreement and disagreement. The parties shall be

equally responsible for assuring that the neutral’s report is filed in a timely

manner and may be subject to appropriate sanctions if filing of the report is

filed later than 130 days after the date of the Rule 16(a) scheduling order.

(i) Jury Fee. For cases required to have an alternative dispute resolution

conference in accordance with this rule, payment of the civil jury fee required

by Rule 38(b) or Rule 76C, shall be deferred until 210 days after the date of the

Rule 16(a) scheduling order. Cases required to have an alternative dispute

resolution conference in accordance with this rule but subsequently exempted

from this rule by court order pursuant to Rule 16B(b) shall pay the jury fee:

(A) when exemption is being requested pursuant to M.R. Civ. P. 16B(b)(4), or

(B) within 14 days of exemption being ordered by the court pursuant to

Rule 16B(b)(9) or any other provision of these rules. If the jury fee is not paid

within the time required, any right to jury trial shall be deemed waived and the

case shall be scheduled on the nonjury list for trial.

(j) Standards for Alternative Dispute Resolution. No agreement or order

to enter into alternative dispute resolution pursuant to this rule may be entered

or issued without consideration being given to the needs of indigent or

unrepresented parties or parties in situations where there is a potential for

violence, abuse, or intimidation.

(k) Confidentiality. A neutral who conducts an alternative dispute

resolution conference pursuant to this rule, or an alternative dispute resolution

process pursuant to subsection (b)(6), shall not, without the informed written

consent of the parties, disclose the outcome or disclose any conduct,

statements, or other information acquired at or in connection with the ADR

conference. A neutral does not breach confidentiality by making such a

disclosure if the disclosure is: (i) necessary in the course of conducting the

dispute resolution conference and reporting its result to the Court as required

in (h)(2); (ii) information concerning the abuse or neglect of any protected

person; (iii) information concerning the intention of one of the parties to

commit a crime, or the information necessary to prevent the crime or to avoid

subjecting others to the risk of imminent physical harm; or (iv) as otherwise

required by statute or court order.

(l) Sanctions. If a party or a party’s lawyer fails without good cause to

appear at a dispute resolution conference scheduled pursuant to this rule, or

fails to comply with any other requirement of this rule or any order made

thereunder, the court may, upon motion of a party or its own motion, order the

parties to submit to alternative dispute resolution, dismiss the action or any

part of the action, render a decision or judgment by default, or impose any other

sanction that is just and appropriate in the circumstances. In lieu of or in

addition to any other sanction, the court shall require the party or lawyer, or

both, to pay the reasonable expenses, including attorney fees, of the opposing

party, and any fees and expenses of a neutral, incurred by reason of the

nonappearance, unless the judge finds an award would be unjust in the

circumstances.