D. Kan. Rule 16.3

(a) Authorization for and Purpose of Mediation. Pursuant to 28 U.S.C. § 652, the

court may require litigants in civil cases to consider the use of an alternative dispute

resolution (“ADR”) process. The court’s primary ADR procedure is mediation

facilitated by a private mediator chosen by the parties. The mediation process is

intended to improve communication among the parties and provide the opportunity

for greater litigant involvement in the earlier resolution of disputes, with the

ultimate goal of securing the just, speedy, and inexpensive disposition of civil cases.

(b) Summary Description of ADR Procedures.

(1) Mediation. Mediation utilizes a neutral third party to facilitate discussions

among the parties to help them find a mutually acceptable resolution of the

case. The goal of the mediator, who may meet with the parties jointly and

separately, is to help them identify their underlying interests, improve

communication, and generate settlement options. A mediator may employ

traditional facilitative strategies (aimed at solutions to problems underlying

the litigation), evaluative strategies (designed to present the strengths and

weaknesses of the case, or its relative value), or a combination of both

approaches. In limited circumstances, the court may conduct the mediation.

(2) Other ADR Procedures. In appropriate cases, the court will facilitate other

forms of ADR, as authorized by 28 U.S.C. §§ 654-658, including, but not

limited to, early neutral evaluation, mini-trial, and arbitration.

(c) Referral of Cases to Mediation. Consistent with Fed. R. Civ. P. 16, the court will

discuss ADR procedures at the scheduling conference. In most cases, the court will

direct the parties, at the earliest appropriate opportunity, to mediate their dispute

with a private mediator.

(1) Referral and Selection Process. The court may refer a case to mediation at

any appropriate time. If the court orders mediation, the parties will jointly

select the mediator. The parties may select any person to serve as mediator,

and the person need not be included on the court-maintained list of

mediators. Absent substantial countervailing considerations, the court will

appoint the jointly-selected mediator. If the parties cannot agree on a

mediator, the parties will submit their nominations to the court, who will

select the mediator.

(2) Attendance at Mediation Session by Persons with Settlement Authority.

Attendance by a party or its representative with settlement authority at the

mediation is mandatory, unless the court orders otherwise. The purpose of

this requirement is to have the party or representative who can settle the

case present at the mediation. A unit or agency of government satisfies this

attendance requirement if represented by a person who has, to the greatest

extent feasible, authority to settle, and who is knowledgeable about the facts

of the case, the governmental unit’s position, and the procedures and

policies under which the governmental unit decides whether to accept

proposed settlements. The parties’ attorney(s) responsible for resolution of

the case must also be present.

(3) Notice to Interested Nonparties. Attorneys must coordinate with the

mediator and identify any nonparties who have an interest in the case

(including, but not limited to, primary and excess liability insurance

carriers, subrogees, and lienholders). The attorneys must provide written

notice to all interested nonparties informing them of the date and location

of the mediation and that their participation is strongly encouraged. A copy

of such notice must be provided to all parties and the mediator.

(4) Requests to be Excused. Unless all parties agree, only the court may excuse

the presence of a person with settlement authority from attending the

mediation in person.

(5) Sanctions. In appropriate circumstances, the court may impose sanctions

pursuant to Fed. R. Civ. P. 16(f).

(d) List of Mediators. The ADR administrator will maintain a list of mediators who

have expressed a desire to mediate cases pending in this court and have complied

with the requirements of this paragraph.

(1) Minimum Qualifications and Training. For placement on the list of

mediators, the person must be a lawyer and:

(A) must have been a member of a state or federal bar in good standing

for the preceding five years and satisfy one of the following

additional requirements:

(i) participated in 40 hours of approved mediation training

within the past two years;

(ii) approved as a mediator for civil cases pursuant to the rules

adopted by the Kansas Supreme Court; or

(iii) participated as mediator, co-mediator, or attorney in 10

mediations in court cases in the past three years;

(B) must abide by the disclosure rule set forth in paragraph (g) below;

(C) must agree to participate periodically in court-approved ADR

orientation or refresher training;

(D) must agree:

(i) to permit participants in the mediation sessions they conduct

to give feedback to the court about how the process was

conducted; and

(ii) to submit reports upon conclusion of the mediation; and

(E) must agree to serve as a mediator on a pro bono basis or, in the

court’s discretion, at a reduced fee in two cases per year.

(2) Placement on the List of Mediators. All applicants must complete the

required application form. The ADR administrator will review the

applications and place applicants meeting the minimum requirements on a

list of mediators. Being on the list of mediators is not an indication a person

is an effective mediator, and no certification results by placement on the list.

The list serves as a resource of persons who offer mediation services and

appear to meet the court’s minimum requirements.

(3) Evaluation. The ADR administrator is authorized to develop an evaluation

program to evaluate the mediation services of private mediators. Any

comments or complaints concerning mediators on the list should be made

to the ADR administrator.

(4) Removal from the List of Mediators. The ADR administrator may remove

any person from the list of mediators for any reason consistent with the

effective management of the program.

(e) Compensation of Private Mediators. Except when serving pro bono, private

mediators must be compensated at the rate negotiated by the attorneys and the

mediator. The fee must be divided by agreement of the parties or as ordered by the

court.

(f) Mediation with Indigent Parties. If a party is indigent, the mediation services

will be provided pro bono or at a reduced rate to that party. The court will determine

whether a party is indigent.

(g) Required Disclosures by Mediator. The mediator must immediately disclose to

the parties the relevant facts giving rise to any potential conflict of interest,

including, but not limited to, the following:

(1) any basis upon which the mediator’s impartiality might reasonably be

questioned;

(2) any bias or prejudice concerning a party to this case;

(3) personal knowledge of evidentiary facts that are disputed in this case;

(4) the mediator or the mediator’s spouse is serving as a lawyer in the case;

(5) any lawyer in the mediator’s firm has served or is serving as a lawyer in the

case;

(6) the mediator or the mediator’s spouse is a party to the case or an officer,

director, or trustee of a party to the case;

(7) the mediator or the mediator’s spouse has been or is likely to be a material

witness in the case;

(8) a lawyer with whom the mediator currently practices has been or is likely

to be a material witness in the case; and/or

(9) the mediator (directly or as a fiduciary), the mediator’s spouse, or any of the

mediator’s minor children who live with the mediator have a financial

interest in the case or in any party to the case.

(h) Withdrawal. If a party requests the mediator to withdraw because of the

disclosures made pursuant to paragraph (g) above, the mediator must withdraw, and

the parties must agree on another mediator.

(i) Confidentiality. Except as provided in paragraph (j) below, this court, the

mediator, all attorneys, the parties, and any other persons involved in the mediation

must treat as “confidential information” the contents of written mediation

statements, anything that happened or was said, any position taken, and any view

of the merits of the case formed by any participant in connection with any

mediation. “Confidential information” must not be:

(1) disclosed to anyone not involved in the mediation process;

(2) disclosed to the trial judge; or

(3) discoverable or subject to compulsory process or used for any purpose,

except as provided in paragraph (j) below, in any pending or future

proceeding in any court unless a court determines that such testimony or

disclosure is necessary to:

(A) prevent manifest injustice;

(B) help establish a violation of law or ethical violation; or

(C) prevent harm to the public health or safety, of such magnitude in the

particular case to outweigh the integrity of dispute resolution

proceedings in general by reducing the confidence of parties in

future cases that their communications will remain confidential.

(j) Limited Exceptions to Confidentiality. Paragraph (i) above does not prohibit:

(1) disclosures as may be stipulated by all parties and the mediator;

(2) disclosure of an agreement, by all parties to the agreement, which appears

to constitute a settlement contract, if necessary, in proceedings to determine

the existence of a binding settlement contract;

(3) a report to or an inquiry by the ADR administrator regarding a possible

violation of these Local Rules;

(4) a report of a possible violation of a court order to the judge or magistrate

judge signing the order;

(5) any participant or the mediator from responding to an appropriate request

for information duly made by persons authorized by the court to monitor or

evaluate the court’s ADR program; or

(6) disclosures as are otherwise required by law.

* * *

As amended 3/05 (formerly D.Kan.S.O. 04-1 and 03-6), 4/8/99, 2/28/97, 2/3/95.