Rule 7. Mandatory appellate alternative dispute resolution.

(1) Statement of purposes. The mandatory appellate alternative dispute resolution procedure is designed to achieve the following goals:

(a) Provide an alternative means to resolve certain civil appeals and to enhance public confidence in the appellate process;

(b) Help the parties avoid the additional legal expense and emotional cost of an appeal;

(c) Prioritize the use of court resources for cases that cannot be resolved between the parties;

(d) Help the parties realistically explore a settlement; and

(e) Provide a speedy and just resolution of the dispute.

(2) Appeals subject to rule. The following categories of appeals shall be subject to the provisions of this rule:

(a) Workers' compensation. All appeals from the Workers' Compensation Court.

(b) Domestic relations. Appeals in domestic relations cases, including but not limited to all dissolution issues, child custody and support issues, maintenance issues and modifications of orders entered with respect to those issues; but excluding proceedings regarding abused or neglected children, paternity disputes, adoptions, and all juvenile and contempt proceedings when the excluded matters constitute the only issues on appeal. In addition, unless each party provides written, informed consent within 15 days of the filing of the notice of appeal, the supreme court will not order appellate mediation in cases where the court has reason to suspect that one of the parties or a child of a party has been physically, sexually, or emotionally abused by the other party. An appellant or cross-appellant desiring to opt out of mandatory mediation under this provision shall certify in the notice of appeal or cross-appeal that the domestic relations case is not subject to mandatory mediation pursuant to this section of the rule.

(c) Money judgments. Appeals in actions seeking monetary damages/recovery.

(d) Appeals which the supreme court, in its discretion, designates as appropriate for mediation.

(3) Time Limitations and supplementary process.

(a) Time limitations. Upon filing a notice of appeal in the manner and time required by rules 4 and 6, the parties and the mediator shall have 75 days within which to complete the process required by this rule. However, in the event the parties are made subject to this rule only as a result of a cross-appeal, the parties shall have 75 days from the filing of the notice of cross-appeal.

(b) Supplementary process. The process required by this rule shall be supplementary to, and have no effect on, the parties' duties, obligations, and time requirements otherwise provided for in these rules; provided, however, that the parties may, by stipulation filed with the clerk of the supreme court and served on the clerk of the district court, hold the time requirements of these rules in abeyance pending completion of the process required by this rule. In the event the parties stipulate to holding time requirements of these rules in abeyance, all such time requirements shall run from the earlier of the date of the filing of the mediator's report, or the expiration of the 75-day time limit.

(4) Selection or appointment and payment of mediator - immunity.

(a) Mediators shall be selected or appointed as provided in sections (4)(b) and (d) of this rule and shall enjoy such judicial immunity as the supreme court would enjoy if performing the same functions. Upon selection or appointment, the clerk of the supreme court shall mail to the mediator a copy of the notice of selection or order of appointment of mediator, the mediator instructions, and mediator's, attorneys', and parties' mediation evaluation forms.

(b) The parties may jointly select a mediator for purposes of complying with the mediation process required by this rule within 15 days of the filing of the notice of appeal or cross-appeal which subjects the case to the requirements of this rule; in the event the parties do not jointly select a mediator, one will be assigned by the clerk of the supreme court.

(c) In the event the parties voluntarily select a mediator, the appellant shall file with the clerk of the supreme court a notice of selection of mediator, substantially complying with Form 5 in the Appendix of Forms, within the above-referenced 15-day deadline.

(d) In the event the parties do not voluntarily and timely select a mediator, the clerk of the supreme court shall appoint as a mediator for the appeal the next self-nominated attorney, in reasonably close proximity to the parties, if possible, on a list maintained by the clerk for that purpose pursuant to section (4)(e) of this rule. The order of appointment, substantially complying with Form 6 in the Appendix of Forms, shall be signed by the clerk of the supreme court and served upon the mediator and the parties to the appeal. The parties may substitute a mediator of their choice for the mediator appointed by the clerk only if, within 10 days of the clerk's appointment, they file a written stipulation signed by all parties agreeing upon a substitute mediator. The parties must also serve a copy of such stipulation upon the mediator appointed by the clerk.

(e) The clerk of the supreme court shall maintain 3 lists of resident Montana attorneys who are members in good standing of the State Bar of Montana, have been licensed as attorneys for no less than 5 years, and have indicated their desire to be appointed as mediators for purposes of this rule by completing and submitting to the clerk an original and 2 copies of the mediator background information form available from the clerk. The separate lists will reflect those attorneys desiring appointment as mediators for the workers' compensation, domestic relations, and/or money judgment appeals which are subject to this rule.

(f) The parties shall share the mediator's fee and incidental expenses equally. However, in money judgment cases where there is $5,000 or less at issue and the judgment is for $5,000 or less, any mediator appointed by the clerk of the supreme court under section (4)(d) shall serve pro bono, and the mediator's incidental expenses shall be shared equally by the parties. All pro bono appointments shall be so indicated in the order of appointment.

(g) If a party is unable to pay for mediation and if the parties are unable to secure the services of a mediator who is willing to serve without fee or at a reduced rate, the party may opt out of the mandatory alternative dispute resolution process by filing with the clerk of the supreme court an affidavit stating the party is unable to afford appellate mediation. Such an affidavit must be filed within the 15 days allowed for the parties to select a mediator under rule 7(4)(b). If the affidavit is filed after the appointment of a mediator, the affidavit will be rejected.

(5) Mediation process. The mediation process required by this rule shall comply with the procedures provided in this section.

(a) The mediation required by this rule is an informal, confidential, nonadversarial process in which an impartial third person, the mediator, assists the parties to an appeal in resolving the differences between them. The decision-making authority remains with the parties; the mediator has no authority to compel a resolution or to render a judgment on any issue. The role of the mediator is to encourage and assist the parties to reach their own mutually-acceptable resolution by facilitating communication; helping to clarify issues, interests, and the appellate perspective; fostering joint problem-solving; and exploring settlement alternatives.

(b) Upon selection or appointment to mediate an appeal as provided by this rule, the mediator shall schedule a mediation conference between the parties for the purpose of attempting to resolve the issues on appeal.

(c) The conference shall be held in person; provided, however, that if distance, time, or other considerations make an in-person conference impractical, the mediator may hold the conference online or by telephone at such time and place as the mediator may determine. The mediation shall proceed in substantial compliance with the requirements of this rule and the guidelines and format set forth in the mediator's instruction sheet.

(d) The appellant, or the cross-appellant in those cases where only the cross-appeal results in the case being subject to this rule, shall submit the required statement of position to the mediator and to the responsive party within 15 days of the date the notice of selection or order of appointment of the mediator is filed under section (4) of this rule. The responsive party shall have 7 days to submit a responsive statement of position. In the event of a cross-appeal, the appellant shall have an additional 7 days to submit its statement of position relative to the issues raised by the cross-appeal.

(e) The parties' respective submissions shall not exceed 10 pages in length, double spaced, on standard letter-sized paper; provided, however, that the parties may attach such exhibits of record and transcript excerpts as the parties may wish the mediator to consider.

(f) The parties shall serve on the mediator and each party their written statement of position substantially complying with Form 7 in the Appendix of Forms and containing, at a minimum, the following:

(i) A statement of issue(s) on appeal and the manner in which each issue was preserved;

(ii) A statement of the standard of review applicable to each issue;

(iii) The position of the party with respect to each issue, with citations to legal authority; and

(iv) In the case of the appellant and any cross-appellant, a copy of the order or judgment from which the appeal is taken.

(g) In addition to the statements of position to be served on the mediator and opposing parties, each party may submit to the mediator a separate confidential submission containing such additional information relative to its position regarding settlement as it may wish to tender in order to facilitate the mediation process required by this rule. Unless otherwise agreed, such a submission shall not exceed 5 pages. The confidential submission, if any, shall be served on the mediator contemporaneously with the service of the party's statement of position.

(h) Each party, or a representative of each party with authority to participate in settlement negotiations and affect a complete compromise of the case, shall participate in the mediation conference. If an insurance carrier, other indemnitor, or self-insurance administrator is involved, a representative with ultimate settlement authority shall participate in the mediation conference.

(6) Proceedings confidential. The mediation process shall be confidential. All proceedings held, submissions tendered, and statements made by anyone in the course of the mediation process required by this rule constitute offers to compromise and statements made in compromise negotiations pursuant to M. R. Evid. 408 and are inadmissible pursuant to the terms of that rule.

(7) Completion of mediation process.

(a) Immediately upon the conclusion of the mediation conference, the mediator shall file a mediator's report substantially complying with Form 8 in the Appendix of Forms with the clerk of the supreme court, and serve copies on the parties.

(b) If the mediator files a report, with proper notice to the parties, indicating that the matter has been settled, the court will dismiss the appeal 30 days later absent a motion to keep the cause number open.

(c) None of the forms, notices, or stipulations to be filed with the clerk of the supreme court shall contain any information relating to the parties' respective positions regarding the issues on appeal, the parties' positions regarding settlement, or any substantive matter which is the subject of the litigation; the exclusive and sole purposes of forms and notices to be filed with the clerk of the supreme court are to maintain status records and statistics, to ensure orderly compliance with the process required by this rule, and to provide a mechanism for returning the case to the ordinary appeal process where mediation has not resolved the case and resulted in a stipulation for dismissal.

(d) The parties are encouraged to continue to pursue settlement efforts in the event the mediation process required by this rule does not resolve the appeal and the case returns to the ordinary appeal process.

(8) Sanctions. Substantial noncompliance with this rule may, on motion of a party or by the supreme court sua sponte, result in the assessment of mediator fees, imposition of monetary sanctions, costs, dismissal of the appeal, or such other sanction as the supreme court deems appropriate.

History: En. Sup. Ct. Ord. No. AF 07-0016, July 3, 2007, eff. October 1, 2007; amd. Sup. Ct. Ord. No. AF 07-0016, May 6, 2009, eff. October 1, 2009; amd. Sup. Ct. Ord. No. AF 07-0016, April 26, 2011, eff. October 1, 2011; amd. Sup. Ct. Ord. No. AF 07-0016, Feb. 17, 2015, eff. October 1, 2015.