Williams v. Kansas City Title Loan, 314 S.W.3d 868 (Mo. Ct. App. 2010)

This case discusses the requirements for a court-ordered mediation under Missouri law, including the need for a written agreement, and the confidentiality of the mediation process.

“Although it may not be stated in so many words, Rule 17.01(d)’s reference to “the parties enter[ing] into a written agreement,” and Rule 17.06(c)’s reference to “execut[ion]” of the “written agreement setting out the essential terms of the agreement,” plainly contemplate a writing executed by all parties. This conclusion is buttressed here by § 2 of the mediation contract the parties executed.”

“Thus, by rule, the back-and-forth of the parties’ settlement discussions during a court-ordered mediation session are inadmissible as evidence.”

“We hold that Rule 17 means what it says: the essential terms of settlements reached during court-ordered mediation sessions must be reduced to a writing signed by the parties in order for such settlements to be enforced. Given that no such writing exists here, the trial court’s enforcement of the purported settlement of Williams’ claims must be reversed.”

TXR, LLC v. Stricker, 440 S.W.3d 541 (Mo. Ct. App. 2014)

This case discusses a contract provision that requires the parties to attempt mediation before proceeding to arbitration, and the court’s decision not to compel arbitration.

“As alleged in TXR’s petition, section nine of the terms and conditions of the contract provided the following: MEDIATION; ARBITRATION; JURISDICTION: Prior to arbitration, the parties shall endeavor in good faith to resolve any claim, dispute or other matter in question arising from, related to or connected with the Agreement between themselves and through mediation, and mediation shall be a condition precedent to arbitration or to the institution of legal or equitable proceedings by either party. If such matter relates or is subject to a lien arising out of design-Builder’s [sic] services, Design–Builder may proceed in accordance with the applicable law to comply with the lien notice or related filing deadlines prior to the initiation or resolution, mediation or arbitration. The parties shall share equally any mediation or arbitration fees. The Strickers concede in their brief that this condition precedent has been satisfied.”

“The docket sheet reflects that a hearing was held wherein “Case called. Parties appear. [Strickers’] motion to stay or compel arbitration is denied.””

TXR, LLC v. Stricker, No. SD33036 (Mo. Ct. App. Jun. 11, 2014)

This case discusses the importance of a mediation clause in a contract, and references relevant Missouri statutes and case law.

“As alleged in TXR’s petition, section nine of the terms and conditions of the contract provided the following: MEDIATION; ARBITRATION; JURISDICTION: Prior to arbitration, the parties shall endeavor in good faith to resolve any claim, dispute or other matter in question arising from, related to or connected with the Agreement between themselves and through mediation, and mediation shall be a condition precedent to arbitration or to the institution of legal or equitable proceedings by either party. If such matter relates or is subject to a lien arising out of design- Builder’s [sic] services, Design-Builder may proceed in accordance with the applicable law to comply with the lien notice or related filing deadlines prior to the initiation or resolution, mediation or arbitration.”

“The venue of any mediation, arbitration or litigation filed and related to the Agreement shall be in Camden County, Missouri and the parties consent to the full jurisdiction of the Camden County, Missouri Circuit Court in these regards.”

“See section 435.440.1(1); Hershewe v. Alexander , 264 S.W.3d 717, 718 (Mo.App. 2008); Jackson Cnty. v. McClain Enters ., Inc ., 190 S.W.3d 633, 638-39 (Mo.App. 2006).”

“Section nine of the terms and conditions of the contract provides six requirements concerning arbitration: first, “[p]rior to arbitration, the parties shall endeavor in good faith to resolve any claim, dispute or other matter in question arising from, related to or connected with the Agreement between themselves and through mediation”; second, “mediation shall be a condition precedent to arbitration”; third, TXR may “comply with the lien notice or related filing deadlines prior to… arbitration”; fourth, “[t]he parties shall share equally any . . . arbitration fees[]”; fifth, “[t]he venue of any . . . arbitration . . . related to the Agreement shall be in Camden County, Missouri”; and sixth, “[a]ny agreement reached in . . . arbitration shall be enforceable as settlement agreements in any court of competent jurisdiction.””

Bauer v. Bauer, 28 S.W.3d 877 (Mo. Ct. App. 2000)

This case discusses the propriety of a trial court ordering mediation under Missouri law, specifically referencing Rule 88.04(a).

“In his fourth point, Husband maintains the trial court erred in ordering the parties to go to mediation prior to filing any subsequent pleadings in this matter in that this order is a violation of the parties’ constitutional right to access the courts and is invalid as it pertains to disputes over property because property division is not modifiable.”

Goldberg v. Goldberg, 691 S.W.2d 312 (Mo. Ct. App. 1985)

This case discusses the court’s authority to order joint custody even when the parents do not agree, and specifically references the option of mediation to resolve disputes.

“Wife’s second point alleges the trial court’s award of joint custody was erroneous because both parties did not agree to and approve of the entry of an order for joint custody of the minor children. Section 452.375 RSMo Supp. 1983 does not require agreement between the parties as a prerequisite of joint custody.”

“Section 452.375.2(1) RSMo Supp. 1983.”

“Wife illustrates by highlighting her consistent position throughout the hearing opposing the award of joint custody.”

“We recognize that there are policy arguments both in support of and in opposition to joint custody, but the very existence of conflicting views on the subject illustrates the necessity and wisdom for leaving the resolution of such disputes in each case to the sound discretion of the trial court.”

Buemi v. Kerckhoff, 359 S.W.3d 16 (Mo. 2011)

This case discusses the enforceability of a settlement agreement reached through mediation, which is relevant to the research request’s inquiry about whether a court should order mediation and the parameters for doing so.

“Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo. banc 2007) (emphasis added). As noted in Ingram v. Rinehart, 108 S.W.3d 783, 789 (Mo.App.2003), such a motion to enforce settlement is for resolution by the Court, not the jury, whether presented as an issue of law or if factual issues exist, for it concerns matters separate from the claims raised in the underlying petition, not the merits. Id. at 788–89. This means: Such a motion may be filed in the underlying action and, in effect, adds a collateral action seeking specific performance of the settlement agreement.”

“Any communications relating to the subject matter of such dispute made during the alternative dispute resolution process by a participant or any other person present at the process shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such process shall be admissible as evidence or subject to discovery, except that, no fact independently discoverable shall be immune from discovery by virtue of having been disclosed in such confidential communication. …. (c) Settlement shall be by written document setting out the essential terms of the agreement executed after the termination of the alternative dispute resolution process.”

State ex Rel. American Fam. Mut. v. Scott, 988 S.W.2d 45 (Mo. Ct. App. 1998)

This case discusses the applicability of Missouri Supreme Court Rule 17, which governs alternative dispute resolution, and specifically addresses whether a court can order a non-party to participate in mediation.

“Kerry L. Montgomery, Judge In this original proceeding, Relator (American Family) seeks to prohibit enforcement of (1) a monetary judgment against it in a civil action in which it is not a party, and (2) an Amended Order for Alternative Dispute Resolution which directs it to participate in mediation by the attendance of its representative who “shall have full authority to settle the litigation within policy limits.””

“The purpose of the rule is to provide an “alternative mechanism” for the resolution of civil disputes with resultant savings in time and expenses to the “litigants” and to the court. Rule 17.01(a). Upon stipulation of the “parties,” a civil action shall be ordered to alternative dispute resolution. Rule 17.03(a) (emphasis added).”

“Under any fair reading of Rule 17, it must be said that the rule merely provides the parties with an opportunity and method to resolve their differences, short of an expensive and time-consuming trial.”

In re Marriage of Brown, 310 S.W.3d 754 (Mo. Ct. App. 2010)

“Resolution of Disputes: If the parties fail to agree on the interpretation of the Parenting Plan, or are unable to agree upon a final decision on issues affecting the growth and development or health and safety of the child(ren), they shall submit the dispute to a mutually agreed mediator and shall make a good faith effort to resolve their differences through the mediation process. In the event they are not able to agree on a mediator they shall each select a mediator from the list of approved mediators maintained by the St. Louis County Family Court and the two mediators shall determine who shall mediate the case. In the event that the parties cannot resolve the dispute by mediation they may file a motion and submit the issue to the Court. (Emphasis added.)”

Boulds v. Dick Dean Economy Cars, 300 S.W.3d 614 (Mo. Ct. App. 2010)

“Boulds contends that the trial court erred in granting Dean’s motion because: (1) Dean waived its right to enforce the arbitration agreement by refusing to arbitrate upon Boulds’ demand and failing to comply with the American Arbitration Association’s (“AAA’s”) Consumer Rules as required by the parties’ agreement; and (2) the one-year limitations period contained in the arbitration agreement is unconscionable and should not be enforced. We reverse and remand. On July 31, 2006, Boulds purchased a car from Dean. Boulds’ contract with Dean included an Arbitration Addendum to Retail Buyer’s Order (“Arbitration Agreement”), which provided in pertinent part: The parties shall first seek to resolve any controversy between them by promptly negotiating with each other in good faith and if such negotiations are unsuccessful then any and all claims or disputes arising between the parties to the Agreement . . . shall be settled by binding arbitration. . . . Either party may demand arbitration by providing the other party with written notice of such demand and thereupon the matter will be deemed to be submitted to arbitration by providing the other party with written notice of such demand. . . . * * * The arbitration shall be governed by the American Arbitration Association’s Commercial Arbitration Rules unless otherwise expressly agreed by the parties. The Federal Arbitration Act shall govern issues of arbitration. * * * Each party shall pay the cost of the arbitrator which it selected . . . and one-half the cost of the third arbitrator or if a single arbitrator is agreed upon by the parties then one-half of such single arbitrator. In consideration of the prompt resolution which is occasioned by the parties’ joint agreement to use arbitration to resolve their disagreements here-under, they jointly: (i) waive the right to the award of punitive or exemplary damages in excess of $5000; (ii) waive any and all claims of wrongful conversion; . . .; and (iv) agree that any and all claims for arbitration must be made within one year from the date the claim or cause of action first arises. * * * The parties agree that, at least in part, they have agreed to arbitration in order to expedite the hearing and resolution of the subject disagreement and for this reason, the arbitrator(s) are expressly authorized to assess costs (including attorneys fees and arbitration fees) which are attributable to any delay which is occasioned by a party’s failure to fully and completely cooperate with the scheduling of hearings or selection of arbitrators against such party.”

Wind v. McClure, 643 S.W.3d 691 (Mo. Ct. App. 2022)

“In response to the lawsuit, McClure filed a motion to compel arbitration and a motion to dismiss. McClure argued that the circuit court should compel arbitration because the Asset Purchase Agreement contained a binding arbitration clause, which stated in relevant part: MEDIATION AND ARBITRATION: It is the intention of the parties to bring all disputes between them to an early, efficient and final resolution. Therefore, it is hereby agreed that all disputes, claims and controversies between the parties hereto, whether individual, joint in class, in nature, or otherwise, shall be exclusively resolved as provided herein through mediation and arbitration. A. Any dispute between the parties as it relates to the terms of this Asset Purchase Agreement or the behavior or practice of the parties as their rights or privileges may be affected in the future, shall be submitted to mediation, in accordance with the rules of the American Arbitration Association or other such professional dispute resolution body mutually acceptable to the parties. B. Any dispute not otherwise satisfactorily resolved through mediation within thirty (30) days from the commencement thereof may be submitted at the request of either party, to binding arbitration pursuant to the rules of the American Arbitration Association (or such professional dispute resolution body mutually acceptable to the parties) through an arbitrator in Missouri that has been selected by the rules of the AAA.”

Triarch Industries, Inc. v. Crabtree, 158 S.W.3d 772 (Mo. 2005)

“If mediation does not result in settlement of the dispute, (or if Seller does not elect to pursue mediation), Seller shall have the right to refer the dispute to binding arbitration under rules of its choice, or to commence litigation.”

Triarch Industries, Inc. v. Crabtree, No. WD 61578 (Mo. Ct. App. May. 4, 2004)

“In its sole point on appeal, the appellant claims that the trial court erred in denying its motion to compel arbitration, on the basis that it had waived arbitration by initially choosing to litigate, because the respondent failed to rebut the presumption, under the Federal Arbitration Act (FAA), 9 U.S.C. § 1-16, favoring arbitration, in that the respondent failed to show that enforcing the appellant’s right to arbitration under the contract, after initially choosing litigation, would result in prejudice to the respondent.”

“The conditions included an arbitration provision: ARBITRATION OF DISPUTES: Any controversy or claim arising out of this contract or the breach thereof may, at Seller’s option, be referred to non-binding mediation under rules of Seller’s choice. If mediation does not result in settlement of the dispute, (or if Seller does not elect to pursue mediation), Seller shall have the right to refer the dispute to binding arbitration under rules of its choice, or to commence litigation.”

State ex Rel. Byrd v. Chadwick, 956 S.W.2d 369 (Mo. Ct. App. 1997)

“We believe that the issues raised by Relators can most easily be analyzed if they are grouped into two categories. We will therefore first discuss whether the trial court acted within its discretion in certifying a temporary class for purposes of settlement without making a preliminary determination as to either the fairness of the settlement or whether the proposed class meets the requirements for class certification under Rule 52.08.”

“Ralph v. American Family Mut.”

“Relators here do argue that the trial court was without authority to certify a class, even for purposes of settlement, without considering whether the class met the requirements of Rule 52.08, that it was required to determine the fairness of the proposed settlement before sending notice to the class, and that it was required to give proper notice to the class before holding a fairness hearing or requiring the absent class members to decide whether to opt out of the class and whether to file a claim, and that it did none of these things.”

“As noted above, Relators argue that the trial court was required to hold a full evidentiary hearing and determine the merits of class certification and the fairness of the settlement before it could give notice to the class of the tentative certification of a class for settlement purposes.”

Smith v. Smith, 75 S.W.3d 815 (Mo. Ct. App. 2002)

“The petitioner father has removed the minor child from the State of Missouri without consent of respondent mother or permission of the Court, 2) the petitioner father has willfully and wantonly denied visitation to respondent continuously and with total disregard of court orders, 3) petitioner father has violated the court’s order by refusing to involve respondent in decisions regarding the health, education, and welfare of the minor child, 4) the petitioner has refused to provide the respondent or the Guardian Ad Litem with access to the child’s medical records, 5) the petitioner has refused to cooperate with the child’s court appointed Guardian Ad Litem, 6) the petitioner has refused to attend court ordered mediation. We will address each of these findings in the order expressed by the trial court’s written entry.”

“The petitioner has refused to attend court ordered mediation. The court ordered mediation.”

“The guardian ad litem testified that she sent “probably 5 letters to the (father’s attorney) about mediation,” and explained its mandatory nature but could not “get any movement on it.””

Mo. Bankers Ass’n, Inc. v. St. Louis Cnty., 448 S.W.3d 267 (Mo. 2014)

“Bankers argue the County exceeded its charter authority under article VI, section 18(b) because the ordinance conflicts with the general laws and public policy of the state regarding foreclosures, particularly with section 443.454. The County acknowledges the legislature stated its express intent to regulate issues related to real property foreclosure as a statewide concern by passage of section 443.454, thus limiting a municipality’s power to govern in this area.”

“The County argues the municipal enactment of foreclosure mediation programs similar to its own had been recognized consistently as a valid exercise of municipal police power, citing one case from Rhode Island and two from Massachusetts for persuasive support. See Deutsche Bank Nat’l Trust Co. v. City of Providence, P.C. No. 10–1240 (Providence Superior Ct., May 17, 2010) (upholding city ordinance requiring foreclosure mediation, but severing deed recording requirements that conflicted with state law); Easthampton Savings Bank v. City of Springfield, 874 F.Supp.2d 25 (D.Mass.2012) (upholding city’s foreclosure mediation ordinance in face of contracts clause, state preemption, and police powers challenges); and Jepson v. Deutsche Bank Nat’l Trust Co., 969 F.Supp.2d 202 (D.Mass.2013) (discussing general benefits of pre-foreclosure mediation programs, but dismissing cause of action).”

Buemi v. Kerckhoff, No. SC91132 (Mo. Aug. 2, 2011)

“Rule 17.06 provides: (a) An alternative dispute resolution process undertaken pursuant to this Rule 17 shall be regarded as settlement negotiations. Any communications relating to the subject matter of such dispute made during the alternative dispute resolution process by a participant or any other person present at the process shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such process shall be admissible as evidence or subject to discovery, except that, no fact independently discoverable shall be immune from discovery by virtue of having been disclosed in such confidential communication. . . . . (c) Settlement shall be by written document setting out the essential terms of the agreement executed after the termination of the alternative dispute resolution process. Rule 17.06 (emphasis added). As the Kerckhoff defendants note, Rule 17.06(a) expressly states that communications made during a Rule 17 meeting are confidential communications and that “no admission, representation, statement or other confidential communication” made during such a meeting “shall be admissible as evidence or subject to discovery.””

Wilson v. City of Kansas City, 598 S.W.3d 888 (Mo. 2020)

“Id. Factors relevant to an award of statutory attorney fees are 1) the rates customarily charged by the attorneys involved in the case and by other attorneys in the community for similar services; 2) the number of hours reasonably expended on the litigation; 3) the nature and character of the services rendered; 4) the degree of professional ability required; 5) the nature and importance of the subject matter; 6) the amount involved or the result obtained; and 7) the vigor of the opposition. Id. This Court has found factor 6 not particularly relevant in a human rights case but factor 5 significant because “[t]he Missouri legislature, in enacting the human rights act, followed the lead of Congress in the choice of authorizing fees to private attorneys for enforcement of human rights claims, rather than relying principally upon government agencies for such enforcement.””

“For this reason, Missouri courts, “are guided by both Missouri law and any federal employment discrimination (i.e., Title VII) case law that is consistent with Missouri law.” Lampley v. Mo. Comm’n on Human Rights , 570 S.W.3d 16, 22 (Mo. banc 2019).”

“The court of appeals has mischaracterized the federal practice as awarding litigation expenses as costs outside the parameters of statutory authority.”

Huber ex Rel. Boothe v. Huber, 174 S.W.3d 712 (Mo. Ct. App. 2005)

“The trial court is afforded broad discretion in awarding child custody, and we will affirm its decision unless we are firmly convinced that the welfare of the child requires a different disposition. Id. at 336. The trial court determines what is the best interest of the child in a child custody dispute, and the court of appeals determines whether the record contains sufficient evidence to support the trial court’s assessment.”

“The court is to consider all relevant factors, including the factors listed in section 452.375.2(1)-(8). See § 452.375.6. In view of the public policy of the State that children should have “frequent, continuing and meaningful contact with both parents,” if the parties have not agreed to a custodial arrangement, the court shall include a finding as to the matter of frequent, continuing, and meaningful contact with the parents, and also a finding detailing the specific relevant factors that made a particular arrangement in the best interest of the child. § 452.375.6.”

“In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.”

X.P.E.L. v. J.L.L., 627 S.W.3d 592 (Mo. Ct. App. 2021)

“” Section 452.375.5(5). Additionally, Section 452.403, RSMo (2016) provides that upon the written request of a grandparent denied visitation with a grandchild, the trial court may order mediation with the goal of reaching a mutually acceptable, voluntary, and consensual agreement in the best interests of the child as to issues of child care and visitation. Here, Grandmother solely alleges that the trial court should have considered granting her visitation based on her qualification under Subdivision (1), thus we review her claim only under that subdivision.”

Sendlein v. Sendlein, 655 S.W.3d 422 (Mo. Ct. App. 2022)

“The parenting plan included a provision under which the parties agreed to mediate any disagreements, and if mediation was unsuccessful, they were then permitted to submit the issue to the court for determination. The record does not indicate that a mediation occurred or that any party contested the decision to return to court due to failure to comply with the parenting plan’s dispute resolution agreement. The dissolution decree designated Father’s residence as the address of the child for mailing and educational purposes. Following the judgment, Father was to remain in the marital home in Franklin County while he prepared the home for sale. Mother planned to live temporarily with her mother, also in Franklin County, until she was able to move into her own home.”

E.A.P ex rel. V.C.I. v. J.A.I., No. SD31844 (Mo. Ct. App. Aug. 14, 2013)

“The practice of parenting coordination is relatively new. It has been defined as: a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and /or the court, making decisions within the scope of the court order or appointment contract.”

“See Section C, Dispute Resolution, in the parenting plan form appended to § 452.310; Section 17, Dispute Resolution Procedure in the Parenting Plan form for use by self-represented parties. The trial court simply may not delegate essential matters of custody and visitation, such as modifying the contact schedule, to a parenting coordinator.”

E.A.P. ex rel. V.C.I. v. J.A.I., 421 S.W.3d 460 (Mo. Ct. App. 2013)

“Id. It is also impermissible to enter an order allowing a therapist to decide when conditions have changed enough to alter the parenting plan. Aubuchon, 384 S.W.3d at 223.”

“On the contrary, it is the public policy of this state to encourage parties in their efforts to resolve child custody disputes “amicably through alternative dispute resolution.” See § 452.375.4. To promote that public policy, Section 452.375.9 requires a trial court’s written parenting plan to include the parenting plan arrangements specified in Section 452.310.”

“See Section C, Dispute Resolution, in the parenting plan form appended to § 452.310; Section 17, Dispute Resolution Procedure in the Parenting Plan form for use by self-represented parties.”

Jackson County v. Mo. State Bd. of Mediation, 690 S.W.2d 400 (Mo. 1985)

Curns v. Akins, No. WD85486 (Mo. Ct. App. Apr. 11, 2023)

“Standard of Review “The issue of whether arbitration should be compelled is a question of law subject to de novo review.” Baker v. Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. banc 2014) (citing State ex rel.”

“Nitro Distributing, Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. banc 2006).”

Statutes (8)

Section 452.403 – Grandparent denied visitation, court may order mediation upon written request, purpose – costs – venue – termination of mediation, when, Mo. Rev. Stat. § 452.403

This statute specifically addresses when a court may order mediation, the purpose of mediation, and the parameters for the process, including costs, venue, and termination.

“1. Upon the written request of a grandparent denied visitation with a grandchild, the associate division of the circuit court may order mediation with any party who has custody or visitation rights with the minor child and appoint a mediator.”

“As used in this section, “mediation” is the process by which a neutral mediator appointed by the court assists the parties in reaching a mutually acceptable voluntary and consensual agreement in the best interests of the child as to issues of child care and visitation. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of common interest and finding points of agreement. An agreement reached by the parties shall be based on the decisions of the parties and not the decisions of the mediator. The agreement reached may resolve all or only some of the disputed issues. 3.”

Section 162.959 – Mediation of dispute available, when – agreement to be in writing – attorney not permitted, when, Mo. Rev. Stat. § 162.959

This statute directly addresses the question of when mediation is available in Missouri, the process for mediation, and the requirements for a mediation agreement.

“1. As used in this section, “mediation” is the process by which a neutral mediator assists the parties in reaching a mutually acceptable voluntary and consensual agreement in the best interests of the child as to issues contained in the notice pursuant to section 162.945. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of common interest and finding points of agreement.”

“Whenever a hearing has been requested pursuant to section 162.961, on any matter in dispute under section 162.961, and the dispute has not been finally resolved, the parties shall be offered an opportunity for mediation to resolve the dispute.”

“Any mediation agreement reached pursuant to this section shall be in writing, signed by the parties, and delivered to all parties engaged in the mediation.”

“Mediators shall be selected by mutual agreement of the parents or guardians and the participating school district or responsible educational agency from a list maintained by the department of elementary and secondary education.”

Section 452.372 – Mandatory educational sessions, when – alternative dispute resolution, when, Mo. Rev. Stat. § 452.372

This statute directly addresses the circumstances under which a court should order mediation, including the factors to consider and parameters for the same.

“1. When a person files a petition for dissolution of marriage or legal separation and the custody or visitation of a minor child is involved, the court shall order all parties to the action to attend educational sessions pursuant to section 452.605.”

“In cases involving custody or visitation issues, the court may, except for good cause shown or as provided in subsection 3 of this section, order the parties to the action to participate in an alternative dispute resolution program pursuant to supreme court rule to resolve any issues in dispute or may set a hearing on the matter.”

“Any alternative dispute resolution program ordered by the court pursuant to this section may be paid for by the parties in a proportion to be determined by the court, the cost of which shall be reasonable and customary for the circuit in which the program is ordered, and shall: (1) Not be binding on the parties; (2)”

“Within one hundred twenty days after August 28, 1998, the Missouri supreme court shall have a rule in effect allowing, but not requiring, each circuit to establish an alternative dispute resolution program for proceedings involving issues of custody and temporary physical custody relating to the child. § 452.372, RSMo L. 1998 S.B. 910”

Section 436.362 – Mediation requirements, Mo. Rev. Stat. § 436.362

“1. At any time, either a claimant or contractor may offer to resolve a claim against a contractor through mediation. Mediation pursuant to this section shall be nonbinding and independently administered. The contractor and claimant shall mutually agree upon a qualified independent and neutral mediator and shall equally share the cost of the mediator. If the parties agree upon a mediator, then the mediation shall take place within a reasonable time period, but in no event later than forty-five days after service of a request for mediation by a claimant upon a contractor or a request by a contractor upon a claimant. A contractor who receives a request for mediation from a claimant shall serve a response in writing within fourteen days and may include within the response the name of a proposed mediator and mediation date. A claimant who receives a request for mediation from a contractor shall serve a response in writing within fourteen days and may include within the response the name of a proposed mediator and mediation date. 2.”

Section 160.262 – Mediation, office of the child advocate to coordinate, when – procedures – binding agreement, when, Mo. Rev. Stat. § 160.262

“If either the school district or charter school or the student or student’s parent does not wish to enter into mediation, mediation shall not occur.4. Each session in the mediation process shall be scheduled in a timely manner and be held in a location that is convenient to the parties in dispute.5. Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent administrative proceeding, administrative hearing, nor in any civil or criminal proceeding of any state or federal court.6. If the parties resolve a dispute through the mediation process, the parties shall execute a legally binding agreement that sets forth the resolution and:(1) States that all discussions that occurred during the mediation process shall remain confidential and may not be used as evidence in any subsequent administrative proceeding, administrative hearing, or civil proceeding of any federal or state court; and(2) Is signed by a representative of each party who has authority to bind the party.”

Section 452.770 – Inconvenient forum, Mo. Rev. Stat. § 452.770

“For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;(2) The length of time the child has resided outside this state;(3) The distance between the court in this state and the court in the state that would assume jurisdiction;(4) The relative financial circumstances of the parties;(5) Any agreement of the parties as to which state should assume jurisdiction;(6) The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and(8) The familiarity of the court of each state with the facts and issues of the pending litigation.3. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, the court shall stay the proceedings on the condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.4. A court of this state may decline to exercise its jurisdiction under sections 452.700 to 452.930 if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.”

Section 452.375 – Custody – definitions – factors determining custody – prohibited, when – public policy of state – custody options – findings required, when – parent plan required – access to records – joint custody not to preclude child support – support, how determined – domestic violence or abuse, specific findings, Mo. Rev. Stat. § 452.375

“The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child. 5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows: (1) Joint physical and joint legal custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes; (2) Joint physical custody with one party granted sole legal custody. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes; (3) Joint legal custody with one party granted sole physical custody; (4) Sole custody to either parent; or (5) Third-party custody or visitation: (a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded a person related by consanguinity or affinity to the child.”

Section 452.335 – Maintenance order, findings required for – termination date, may be modified, when, Mo. Rev. Stat. § 452.335

“The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including: (1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (2)”

“The comparative earning capacity of each spouse; (4) The standard of living established during the marriage; (5)”

“The conduct of the parties during the marriage; and (10) Any other relevant factors. 3.”

Regulations (11)

Section 20 CSR 4240-2.125 – Procedures for Alternative Dispute Resolution, Mo. Code Regs. tit. 20 § 4240-2.125

“The commission may order mediation before any further proceeding in a case. (B) As the commission deems appropriate, or upon a request for mediation, the commission may appoint a presiding officer or other neutral third party other than the presiding officer assigned to the case to mediate the dispute. (C) All other actions on the case shall cease and all time limitations shall be tolled pending the completion of mediation process, except as otherwise provided by law. (D) The mediator shall be disqualified from conducting an evidentiary hearing relating to that particular case and shall not make any communication regarding the settlement or mediation discussions in the case to any commissioner or the presiding officer appointed to preside over the case. (E) Failure to appear and participate in good faith in commission ordered mediation shall be grounds for sanctions including dismissal or default of the noncompliant party. 20 CSR 4240-2.125 AUTHORITY: section 386.410, RSMo 2000.* This rule originally filed as 4 CSR 240-2.125.”

Section 13 CSR 40-91.020 – Vocational Rehabilitation for the Blind, Mo. Code Regs. tit. 13 § 40-91.020

“Applicants and eligible individuals shall have the right to pursue mediation with respect to disputes involving any determinations that affect the provision of vocational rehabilitation services. 1. Mediation shall be voluntary on the part of the individual and RSB; not be used to deny or delay the rights of an individual to a due process hearing or deny any other rights; and be conducted by a qualified and impartial mediator who is selected from a list of qualified and impartial mediators maintained by RSB. 2. RSB shall bear the reasonable costs of the mediation process. 3. An applicant or eligible individual may request mediation by writing the Deputy Director of RSB and stating the issue(s) to be mediated. If mediation is agreed upon by both RSB and the applicant or eligible individual, a qualified mediator will then be selected by the individual. The mediator will be informed of the request and will assist parties in selecting a mutually agreeable time and place. 4.”

Section 8 CSR 50-2.010 – Procedures for Non-contested and Contested Workers’ Compensation Cases, Mo. Code Regs. tit. 8 § 50-2.010

“Any such meeting is voluntary and will be conducted according to section 435.104, RSMo 1994. Any agreement regarding medical or temporary benefits shall be reduced to writing and signed by the parties.”

“The local adjudication offices may, by written local procedures, require a mediation setting before a hearing will be set in a contested case. This mediation shall not be construed as the dispute management meeting held pursuant to section (4) of this rule. (B) Any mediation in a contested case shall be conducted according to 8 CSR 50-2.050. (C)”

Section 20 CSR 4240-36.030 – Mediation, Mo. Code Regs. tit. 20 § 4240-36.030

“(2) Response to Request for Mediation- Within five (5) days of a request to the commission for mediation, each party to a negotiation that has not requested mediation shall advise the commission of its willingness to mediate the differences between the negotiating parties.(3) Appointment of Mediator-When all parties to a negotiation agree to mediation, the commission shall appoint a mediator within ten (10) days of the request for mediation.Each party is expected to be able to provide to the mediator that party’s justification for the terms of any resolution that it proposes.(14) Authority of the Mediator-The mediator does not have authority to resolve the dispute, but the mediator shall help the parties attempt to reach a mutually satisfactory resolution.”

Section 8 CSR 50-2.050 – Mediation Services, Mo. Code Regs. tit. 8 § 50-2.050

“PURPOSE: This rule sets forth the administrative procedures for initiating mediation services whereby parties are afforded an opportunity to resolve disputes prior to proceeding to the hearing process. (1) As the division deems appropriate, or upon application filed by either party, mediation services will be provided by a representative of the division for the purposes of ascertaining the issues, identifying the areas of dispute and attempting to facilitate a resolution of the dispute. (2) The written request for mediation services should include the injury number assigned to the case, the names of each party to the dispute, if known, and an explanation of the dispute. (3) Mediation services shall be informal and may be used at any time prior to commencement of an evidentiary hearing. The individual conducting the mediation proceeding may note in the case file that an attempt at mediation was unsuccessful and may also note the areas of dispute.”

“In the event the person conducting the mediation service also has authority to preside over an evidentiary hearing should mediation prove unsuccessful, that person shall be disqualified from conducting an evidentiary hearing relating to that particular case without limiting the rights conferred by section 287.810, RSMo, unless the parties to the case agree to permit that person to conduct an evidentiary hearing. 8 CSR 50-2.050 AUTHORITY: section 287.650, RSMo 1994.* Emergency rule filed March 7, 1994, effective March 17, 1994, expired July 14, 1994.”

Section 5 CSR 20-500.200 – Mediation, Mo. Code Regs. tit. 5 § 20-500.200

“PURPOSE: This rule establishes the procedures for mediation for applicants or eligible individuals dissatisfied with a determination made regarding the provision of services by the Office of Adult Learning and Rehabilitation Services, Department of Elementary and Secondary Education pursuant to the Rehabilitation Act of 1973 as amended, 29 USC section 701 et. seq. and the Code of Federal Regulations, 34 CFR section 361.57(d). (1) The applicant or eligible individual may request mediation regarding disputes involving any determination by the vocational rehabilitation (VR) that affects the provision of services.”

“Mediation will be held within sixty (60) days of the request unless both parties agree to a specified time extension.”

“The assistant commissioner of the Office of Adult Learning and Rehabilitation Services or his/her designee will assign a mediator agreed to by both VR and the applicant or eligible individual. (3) An agreement reached by the parties as a result of mediation shall be set forth in writing. (4)”

Section 8 CSR 20-6.010 – Complaints and Mediation, Mo. Code Regs. tit. 8 § 20-6.010

“PURPOSE: This rule outlines procedures for filing complaints and mediation of these complaints by the commission. (1) Complaints. Any female employee above the age of eighteen (18) years who believes that the wages being paid her are less than the wages to which she is entitled under section 290.400-290.430, RSMo (1986) may file a complaint with the commission.”

“Upon receipt of the employer’s answer or in the event the employer shall fail to answer, the commission, as expeditiously as possible, shall set the cause for mediation first having given the parties or their attorneys at least ten (10) days’ notice of the time and place. The mediation, insofar as practicable, shall be held with due regard for the convenience of the parties. 8 CSR 20-6.010 AUTHORITY: section 286.060, RSMo 1986.”

Section 20 CSR 4240-125.090 – Dispute Resolution, Mo. Code Regs. tit. 20 § 4240-125.090

“PURPOSE: To establish, pursuant to section 700.689, RSMo, a manufactured housing dispute resolution program to promote the timely resolution of disputes among manufacturers, dealers, and installers of manufactured homes. (1) After completion of an initial inspection of a manufactured home, a dispute resolution process may be initiated in order to resolve disputes between the manufacturer, the dealer, and the installer of the home.”

“Upon the decision to initiate the dispute resolution process or upon receipt of a written request to do so, the manager shall notify in writing all parties of the time and place of the dispute resolution.”

“The homeowner shall have the right to attend the dispute resolution, to provide input at the request of the manager, and to be informed of the outcome. (3)”

“Within ten (10) days of the dispute resolution, the manager shall send to the parties a final inspection report that identifies which party has been determined by the manager to be responsible for repairing the items originally in dispute.”

Section 8 CSR 60-2.170 – Settlement Negotiations, Mo. Code Regs. tit. 8 § 60-2.170

“PURPOSE: This rule describes the process of settlement negotiations and settlements at the hearing stage. (1) Where a settlement of the case is reached by the parties prior to or after the public hearing, the parties shall sign the necessary documents and submit these documents to the presiding officer within the time ordered by the presiding officer. (2) Where a case is settled by parties on the date of hearing, the terms of the settlement shall be placed on the record and the appropriate documentation submitted in writing after that to the presiding officer within the time ordered by the presiding officer. (3) Where the parties fail to complete and submit a written, signed settlement, within the time ordered, the presiding officer may again schedule the case for hearing. 8 CSR 60-2.170 AUTHORITY: sections 213.030 and 213.075, RSMo (Cum. Supp. 1992).* Original rule filed April 15, 1988, effective July 11 , 1988. *Original authority: 213.030, RSMo 1959, amended 1978, 1986, 1992 and 213.075, RSMo 1986, amended 1992.”

Section 19 CSR 30-30.090 – Organization and Management Standards for Birthing Centers, Mo. Code Regs. tit. 19 § 30-30.090

“If a written agreement with the ambulance service cannot be achieved due to reasons that are neither regulatory or statutory, the administrator can request a waiver or mediation from the department. (E)”

“If a written agreement with a licensed hospital cannot be achieved due to reasons that are neither regulatory or statutory, the administrator can request a waiver or mediation from the department. Peer review report may be submitted as evidence for mediation. (F)”

Section 20 CSR 400-3.650 – Medicare Supplement Insurance Minimum Standards Act, Mo. Code Regs. tit. 20 § 400-3.650

“The procedures shall be aimed at mutual agreement for settlement and may include arbitration procedures.1.”

Analyses (4)

Why Mediation Is the Holy Grail for Health Care Disputes

“After trying cases for most of my career and having served as a full-time neutral for the past five years, I’m convinced mediation is the best option for resolving cases while keeping your clients’ interests in mind, particularly for health care disputes.”

“Mediation allows for parties to creatively craft resolutions that might not otherwise be available through the court system. Mediation has allowed for a vast majority of cases to reach resolution even when it is court-ordered. Mediation works. Here are some factors to consider regarding mediation: Mediation can eliminate the stress and emotional toll associated with going to trial or participating in an arbitration.”

“Mediation gets results with an aggregate settlement rate of 89%; an effective ADR tool to bring closure to matters. So there you have it.”

Should the Federal Mediation Privilege Only Apply to Court-Ordered Mediations?

“The Teligent 3-Part Test Governing Mediation Confidentiality In Teligent, a debtor filed an action against its former CEO to recover the $12 million balance on an unpaid loan. The parties voluntarily agreed to mediate the dispute under confidentiality provisions sourced from protective orders previously entered by the bankruptcy court in the context of court-ordered mediations.”

“The Second Circuit observed that confidentiality is an important feature of mediation that “promotes the free flow of information” necessary to help settle disputes.”

“The District Court agreed with Judge Gorenstein’s application of Teligent to the pre-suit mediation in Singapore, holding that the 3-part Teligent test applies “to all situations in which a party seeks disclosure of confidential mediation communications.””

“Ultimately, it does not appear there is a persuasive basis to distinguish between private mediations and court-ordered mediations in terms of mediation confidentiality given that confidentiality is equally vital in private mediations to encourage candor.”

When Does Evaluative Mediation Cross the Line from Neutral Analysis to Legal Advice?

“In contrast, under the evaluative approach, the mediator will also provide each party with a neutral assessment of the strengths and weaknesses of their respective cases. At the same time, it is well-established that, as a neutral, a mediator may not offer legal advice to either party.”

“A Fall 2017 article in the Harvard Negotiation Law Review entitled The Irony of Mediator as Problem Maker: Mediator Misconduct Setting Aside Mediated Agreements reviews caselaw addressing efforts to rescind settlements based on allegations of mediator coercion.”

“But for now let’s focus on the practical bottom line: in most cases, dispute resolution is what motivates parties to seek mediation; if they wanted to continue fighting, and assume the risks of litigation, they could have proceeded in court (an exception being court-ordered mediation, but even then the value of dispute resolution is still present even if the court itself is motivated by a desire to clear its docket).”

“The questions raised by Stark’s article segue nicely into a practical guideline that emerges from the cases cited above; namely, whether working with represented or unrepresented parties, mediators should ask participants to confirm their understanding in writing before the mediation begins that the mediator is a neutral who does not represent either party; that while the mediator may at times offer his or her assessment of strengths and weaknesses, such evaluation should not be construed as legal advice; and that both parties are free to solicit advice from independent counsel and other advisors should they have any doubts about any evaluation provided by the mediator.”

When, Where and Whether: The Confusing Law of Third-Party Evidence