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§ Rule 16B Alternative Dispute Resolution

Codes > Maine Revised Statutes > Rules of > III Pleadings > Rule 16B

Rule 16B. Alternative Dispute Resolution

    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.

    (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.