Supreme Court of Missouri
en banc
December 21, 2021
Effective July 1, 2022
In re:
(1) Repeal of the heading title and subdivision (a) of subdivision 17.03, entitled "Referral, Notification and Appointment," of Rule 17, entitled "Alternative Dispute Resolution," and in lieu thereof adoption of a new heading title and a new subdivision (a) of subdivision 17.03, entitled "Referral, Notification, and Appointment."
(2) Repeal of the title of Rule 88, entitled "Dissolution, Legal Separation and Child Support," and in lieu thereof adoption of a new title of Rule 88, entitled "Domestic Relations and Paternity Cases – Calculation of Child Support – Mediation – Self-Representation Litigants."
(3) Repeal of subdivision 88.02, entitled "Mediation Authorized;" the heading title and subdivision 88.03, entitled "Mediation of Child Custody and Visitation – Mediation Defined;" subdivision 88.04, entitled "Mediation – When Ordered – Appointment of Mediator;" subdivision 88.05, entitled "Mediation – Qualifications of Mediator;" and the heading title and subdivision 88.08, entitled "Confidentiality," of Rule 88, entitled "Domestic Relations and Paternity Cases – Calculation of Child Support – Mediation – Self-Representation Litigants," and in lieu thereof adoption of a new subdivision 88.02, entitled "Mediation Authorized;" a new heading title and a new subdivision 88.03, entitled "Mediation Defined;" a new subdivision 88.04, entitled "Mediation – When Ordered – Appointment of Mediator;" a new subdivision 88.05, entitled "Mediation – Qualifications of Mediator;" and a new heading title and a new subdivision 88.08, entitled "Confidentiality and Settlement."
(4) Adoption of a new Model Local Court Rule 75, entitled "Mediation in Domestic Relations and Paternity Cases," of subdivision 6.04, entitled "Model Local Court Rules," of Court Operating Rule 6.
(5) Repeal of the portion of the table of contents entitled "Rules Relating to Particular Actions" of subdivision 6.01, entitled "Table of Contents," of Court Operating Rule 6 and in lieu thereof adoption of a new portion of the table of contents entitled "Rules Relating to Particular Actions."
ORDER
1. It is ordered that, effective July 1, 2022, the heading title and subdivision (a) of subdivision 17.03 of Rule 17 be and the same are hereby repealed and a new heading title and a new subdivision 17.03 are hereby adopted in lieu thereof to read as follows:
17.03 REFERRAL, NOTIFICATION, AND APPOINTMENT
(a) A civil action shall be ordered to alternative dispute resolution upon stipulation of the parties except in cases governed by Rule 88. A civil action may be ordered to alternative dispute resolution upon the motion of any party or by the court. Absent the parties agreeing to an alternative dispute resolution process, the court shall determine the most appropriate process.
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2. It is ordered that, effective July 1, 2022, the title of Rule 88 be and the same is hereby repealed and a new title of Rule 88 is hereby adopted in lieu thereof to read as follows:
88 DOMESTIC RELATIONS AND PATERNITY CASES – CALCULATION OF CHILD SUPPORT – MEDIATION – SELF-REPRESENTED LITIGANTS
3. It is ordered that, effective July 1, 2022, the heading titles of subdivisions 88.03 and 88.08 and subdivisions 88.02, 88.03, 88.04, 88.05, and 88.08 of Rule 88 be and the same are hereby repealed and new heading titles to subdivisions 88.03 and 88.08 and new subdivisions 88.02, 88.03, 88.04, 88.05, and 88.08 are hereby adopted in lieu thereof to read as follows:
88.02 MEDIATION AUTHORIZED
As provided in this Rule 88, any judicial circuit may elect to establish a mediation program for contested issues, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, and property division, in domestic relations and paternity cases. Mediation may be conducted in person or by telephone or video conferencing.
88.03 MEDIATION DEFINED
Mediation under this Rule 88 is the process by which a neutral mediator appointed by the court assists the parties in reaching a mutually acceptable agreement as to contested issues in domestic relations and paternity cases, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, and property division. The role of the mediator is to assist the parties in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator. The agreement reached can resolve all or only some of the contested issues.
88.04 MEDIATION – WHEN ORDERED – APPOINTMENT OF MEDIATOR
(a) The court may order mediation of any contested issue, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, or property division, in domestic relations and paternity cases at any time upon the motion of a party or the court's own motion.
(b) No investigation and report will be ordered by the court during the pendency of the mediation.
(c) If the court orders mediation under this Rule, then the mediator shall meet the minimum qualifications required under Rule 88.05.
(d) The court may appoint a mediator agreed upon by the parties. If
the parties cannot agree or if the court does not approve the agreed-upon mediator, the court may select the mediator.
(e) At any time following assignment of a mediator, a party may file a written application to disqualify the mediator for cause. A service copy of the application and a notice of the time when it will be presented to the court must be provided to all interested parties. Within 10 days of the application being filed, any adverse party may file a denial of the cause or causes alleged in the application. If a denial is filed, the court may hear evidence and determine the issues. If the court finds in the applicant's favor or no denial is filed, reassignment of a mediator shall be done in accordance with the procedures for appointment of a mediator as set out in this Rule.
(f) To facilitate the use of mediation in domestic relations or paternity cases, circuits are encouraged to adopt local rules to accommodate and provide procedures for the use of mediation as may be ordered by the court or to provide for mandatory mediation within the circuit if desired. The Supreme Court of Missouri approved Model Local Rule 75 for this purpose.
88.05 MEDIATION – QUALIFICATIONS OF THE MEDIATOR
(a) A mediator who performs mediation in domestic relations and paternity cases pursuant to this Rule 88 shall be a person who has stated by affidavit that he or she:
(1) Is an attorney or a person who possesses a graduate degree in a field that includes the study of psychiatry, psychology, social work, counseling, or other behavioral science substantially related to marriage and family interpersonal relationships;
(2) Has received a minimum of 20 hours of child custody mediation training in a program approved by the court that shall include a component of training covering violence and power imbalance issues; and
(3) Any additional qualifications required by local court rule.
(b) Mediators qualified for appointment under this Rule may file proof of their qualifications with the circuit clerk of a county, who shall maintain a master list for the county of qualified mediators available for appointment. A circuit clerk's master list is not exhaustive of qualified mediators and does not prevent the appointment by the court of other qualified mediators under this Rule. Bar organizations may also maintain lists of qualified mediators.
(c) In appointing a qualified mediator, the court shall consider:
(1) The nature and extent of any relationship the mediator may have with the parties and any personal, financial, or other interests the mediator may have that could result in bias or conflict of interest; and
(2) The mediator's knowledge of: (A) the Missouri judicial system and the procedures used in domestic relations cases, (B) other resources in the community to which parties can be referred for assistance, (C) child development, (D) clinical issues relating to children, (E) the effects of the dissolution of marriage on children, (F) family systems theory, and (G) mediation and conflict resolution.
88.08 CONFIDENTIALITY AND SETTLEMENT
(a) Mediation proceedings shall be regarded as settlement proceedings. With the exception of information released pursuant to Rule 88.06(a)(6), any communication relating to the subject matter of such disputes made during the mediation by any participant, mediator, or other person present at the mediation shall be a confidential communication. No admission, representation, statement, or other confidential communication made in setting up or conducting a mediation 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.
(b) No person who serves as a mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation.
(c) All mediations shall be non-binding unless the parties enter into a written agreement as provided in Rule 88.08(d). A written agreement shall be binding to the extent not prohibited by law.
(d) Settlement shall be by a written document setting out the essential terms of the agreement executed after the mediation's termination.
(e) An individual or organization providing mediation services pursuant to this Rule 88 or any agent or employee of the individual or organization may be called in an action to enforce the written settlement agreement reached following the mediation's conclusion for the limited purpose of describing events following the mediation's conclusion.
4. It is ordered that, effective July 1, 2022, a new Model Local Court Rule 75 of subdivision 6.04 of Court Operating Rule 6 is hereby adopted to read as follows:
COURT OPERATING RULE 6.04 MODEL LOCAL COURT RULES
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75 MEDIATION IN DOMESTIC RELATIONS AND PATERNITY CASES
The following model Local Rule 75, the provisions of which are based on local rules adopted by various Missouri circuit courts, may serve as a model for any circuit wishing to adopt local rules for mediation in domestic relations and paternity cases involving contested issues, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, and property division. Some circuits have additional local rules providing more detailed procedures that other circuits may wish to consider. Bracketed alternatives are provided on the issue whether mediation is to be voluntary or mandatory in a particular circuit.
75.1 MEDIATION PROGRAM
Missouri Supreme Court Rule 88.02 provides: "As provided in this Rule 88, any judicial circuit may elect to establish a mediation program for contested issues, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, and property division, in domestic relations and paternity cases." This Circuit chooses to establish a mediation program, as defined in Rule 88.03, that will operate as provided by Rule 88 as supplemented by this circuit's local rules set out below.
75.2(A) [VOLUNTARY ELECTION TO MEDIATE CONTESTED ISSUES IN DOMESTIC RELATIONS AND PATERNITY CASES
Pursuant to Rule 88.04(a), "The court may order mediation of any contested issue, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, or property division, in domestic relations and paternity cases at any time upon the motion of a party or the court's own motion." In addition, in this circuit, without court order, in every domestic relations or paternity case involving contested issues, including, but not limited to, child custody, parenting plans, parenting time, child support, maintenance, and/or property division, the parties may elect to participate in mediation as an alternative dispute resolution method.]
75.2(B) [MANDATORY MEDIATION OF CONTESTED ISSUES IN DOMESTIC RELATIONS AND PATERNITY CASES
Pursuant to Rule 88.04(a), "The court may order mediation of any contested issue, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, or property division, in domestic relations and paternity cases at any time upon the motion of a party or the court's own motion." Pursuant to that authority, this Circuit requires that, in every domestic relations and paternity case involving contested issues, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, or property division, the parties shall be required to participate in mediation as an alternative dispute resolution method, unless the mediator or the parties show good cause why or the court, on its own motion, determines that mediation should not occur. Upon referral to mediation, the mediator shall screen the parties to determine whether mediation is inappropriate due to domestic violence, abuse, or a significant imbalance of negotiating power.]
75.3 APPOINTMENT OF MEDIATORS
Pursuant to Rule 88.04(d), "The court may appoint a mediator agreed upon by the parties. If the parties cannot agree or the court does not approve of the agreed-upon mediator, the court may select the mediator." Pursuant to Rule 88.05(b), the circuit clerk of each county shall maintain a master list for the county of qualified mediators available for appointment. The circuit clerk's master list is not exhaustive of qualified mediators and does not prevent appointment by the court of other qualified mediators under this Rule.
The master list shall indicate the name, office address, mailing address, telephone number, e-mail address, qualifications, and current hourly rates of each mediator listed. The circuit clerk shall update such list as needed.
Pursuant to Rule 84.04(e), "At any time following assignment of a mediator, a party may file a written application to disqualify the mediator for cause. A service copy of the application and a notice of the time when it will be presented to the court must be provided to all interested parties." An adverse party has 10 days in which to file a denial of the cause or causes alleged in the application.
Upon the filing of a denial, the court may hear evidence and determine the issue. If the court finds in the applicant's favor or no denial is filed, reassignment of a mediator shall be done in accordance with the procedures for appointment of a mediator as set out in Rule 84.04(d).
75.4 QUALIFICATIONS OF MEDIATORS
Mediator qualifications shall be as set out in Rule 88.05.
75.5 DUTIES OF MEDIATORS
Mediator duties shall be as set out in Rule 88.06.
75.6 TERMINATION OF MEDIATION
Termination of mediation shall be as set out in Rule 88.07.
75.7 CONFIDENTIALITY OF MEDIATION
Mediation confidentiality shall be as set out in Rule 88.08.
75.8 REPRESENTATION BY COUNSEL AND ATTENDANCE OF COUNSEL
With the consent of both parties, counsel for each party can be excluded from participation in the mediation process. Counsel for each party shall at any time be permitted to privately communicate with their client concerning the mediation process. Mediation by parties not represented by counsel shall be governed by Rule 88.09.
75.9 COSTS
Where the parties cannot agree upon the method or allocation of the mediator's payment, the court retains the authority to determine a final, equitable allocation of the costs of the mediation process. If a party fails to pay for the mediator, the court may, upon motion, issue an order for the payment of such costs and impose appropriate sanctions. If a party is determined indigent by the court and free or low-cost mediation services are not available, the court may waive the mediation requirement, and the case shall proceed otherwise.
75.10 FAILURE TO APPEAR
If either party fails to appear for any scheduled mediation session without reasonable notice, the court may, on its own motion or motion of a party, award mediator's fees and/or costs or impose any other appropriate sanction provided by law.
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5. It is ordered that, effective July 1, 2022, the portion of the table of contents entitled "Rules Relating to Particular Actions" of subdivision 6.01 of Court Operating Rule 6 be and the same is hereby repealed and a new portion of the table of contents entitled "Rules Relating to Particular Actions" is hereby adopted in lieu thereof to read as follows:
COURT OPERATING RULE 6.01 TABLE OF CONTENTS
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RULES RELATING TO PARTICULAR ACTIONS
61. Adoption.
61.1 Filing Requirements.
61.2 Home Study.
62. Drivers' Cases.
62.1 Applications for Hardship Driving Privileges.
62.2 Petitions for Review.
62.3 Breathalyzer Test.
63. Associate Division Cases.
64. Cases Arising under Chapters 207 and 208, RSMo 1978 (Commonly Known as Title IV-D and H.B. 601 Actions).
65. Civil Commitment.
66. Condemnation.
67. Criminal Cases.
67.1 Pretrial Release.
67.1.1 Motions to Set Bond and for Bond Reduction.
67.1.2 Deposit of Operator's License.
67.2 Preliminary Hearing.
67.3 Grand Jury.
67.4 Attorneys.
67.5 Arraignments.
67.5.1 In General.
67.5.2 Dates.
67.6 Discovery.
67.7 Motions.
67.8 Plea Bargaining.
67.9 Guilty Plea.
67.9.1 Where Entered.
67.9.2 Petition to Enter a Plea of Guilty.
67.10 Calendar.
67.11 Probation and Parole.
68. Dissolution of Marriage.
68.1 Filing Requirements.
68.2 Separation Agreement.
68.3 Forms of Decree.
68.4 Filing of Financial Statements.
68.5 Modification of Decree.
69. Municipal Division.
69.01 Determining Indigent Status in Municipal Division Cases.
70. Partition.
71. Administrative Reviews.
72. Probate.
73. Small Claims.
74. Trust Estates.
74.1 Inventory.
74.2 Reports.
74.3 Record.
74.4 Audit.
75. Mediation in Domestic Relations and Paternity Cases.
75.1 Mediation Program.
75.2(A) Voluntary Election to Mediate Contested Issues in Domestic Relations and Paternity Cases.
75.2(B) Mandatory Mediation of Contested Issues in Domestic Relations and Paternity Cases.
75.3 Appointment of Mediators.
75.4 Qualifications of Mediators.
75.5 Duties of Mediators.
75.6 Termination of Mediation.
75.7 Confidentiality of Mediation.
75.8 Representation by Counsel and Attendance of Counsel.
75.9 Costs.
75.10 Failure to Appear.
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6. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
7. It is ordered that this order be published in the South Western Reporter.
8. The state courts administrator is directed to provide copies of this order to each court of appeals chief judge and clerk and each presiding circuit judge and circuit clerk and such other persons as the administrator deems appropriate.
Day – to – Day
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PAUL C. WILSON
Chief Justice