1997 Regular Session
To: Judiciary A
By: Representative Green (72nd)
House Bill 46
AN ACT TO PROVIDE FOR THE MEDIATION OF DISPUTES IN COURTS WHO ELECT TO UTILIZE THE PROVISIONS OF THIS ACT; TO DEFINE CERTAIN TERMS; TO PROVIDE THAT ACTIONS ORDERED INTO ARBITRATION SHALL NOT BE ORDERED INTO MEDIATION; TO PROVIDE A LIMITATION ON THE AMOUNT IN CONTROVERSY; TO PROVIDE FOR THE SELECTION OF A MEDIATOR; TO PROVIDE FOR TIME LIMITATIONS; TO PROVIDE FOR COMPENSATION OF MEDIATORS; TO PROVIDE FOR THE TERMINATION OF MEDIATION; TO PROVIDE FOR THE USE OF THE RULES OF EVIDENCE; TO PROVIDE FOR DISCOVERY; TO PROHIBIT REFERENCE OF MEDIATION DURING A SUBSEQUENT TRIAL; TO REQUIRE REPORTS TO THE LEGISLATURE; TO PROVIDE FOR THE PROMULGATION OF RULES TO IMPLEMENT THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The Legislature finds and declares that:
(a) The peaceful resolution of disputes in a fair, timely, appropriate, and cost-effective manner is an essential function of the judicial branch of state government.
(b) In the case of many disputes, litigation culminating in a trial is costly, time consuming, and stressful for the parties involved. Many disputes can be resolved in a fair and equitable manner through less formal processes.
(c) Alternative processes for reducing the cost, time, and stress of dispute resolution, such as mediation, have been effectively used elsewhere. In appropriate cases mediation provides parties with a simplified and economical procedure for obtaining prompt and equitable resolution of their disputes and a greater opportunity to participate directly in resolving these disputes. Mediation may also assist to reduce the backlog of cases burdening the judicial system. It is in the public interest for mediation to be encouraged and used where appropriate by the courts.
(d) Mediation and similar alternative processes can have the greatest benefit for the parties in a civil action when used early, before substantial discovery and other litigation costs have been incurred. Where appropriate, participants in disputes should be encouraged to utilize mediation and other alternatives to trial for resolving their differences in the early stages of a civil action.
(e) As a pilot project in courts which elect to apply this act, courts should be able to refer cases to appropriate dispute resolution processes such as judicial arbitration and mediation as an alternative to trial, consistent with the parties' right to obtain a trial if a dispute is not resolved through mediation.
(f) The purpose of this act is to encourage the use of court-annexed alternative dispute resolution methods in general, and mediation in particular. It is estimated that a substantial portion of this cost can be saving if these cases are resolved before trial.
The Administrative Office of Courts shall conduct a survey to determine the number of cases resolved by alternative dispute resolution authorized by this act, and shall estimate the resulting savings realized by the courts and the parties. The results of the survey shall be included in the report submitted pursuant to Section 15 of this act. The programs authorized by this act shall be deemed successful if they result in estimated savings of at least Two Hundred Fifty Thousand Dollars ($250,000.00) to the courts and corresponding savings to the parties.
SECTION 2. (1) As used in this act:
(a) "Court" means a chancery or circuit court, municipal court, county court or justice court.
(b) "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.
(2) Unless otherwise specified in this act or ordered by the court, any act to be performed by a party may also be performed by his or her counsel of record.
SECTION 3. (1) A court of any county or circuit or chancery court may elect whether or not to apply this act to eligible actions filed in that court and this act shall not apply in any court which has not so elected. An election under this section may be revoked by the court at any time.
(2) Courts are authorized to apply this act to all civil actions pending or commenced on or after July 1, 1997.
SECTION 4. (1) In the courts that elect to apply this act, all at-issue civil actions in which arbitration is otherwise required, whether or not the action includes a prayer for equitable relief, may be submitted to mediation by the presiding judge or the judge designated under this act as an alternative to judicial arbitration.
(2) Any civil action otherwise within the scope of this act in which a party to the action is a public agency or public entity may be submitted to mediation pursuant to subsection (1) of this section.
SECTION 5. An action that has been ordered into arbitration may not be ordered into mediation under this act, and an action that has been ordered into mediation pursuant to Section 4 of this act may not be ordered into arbitration.
SECTION 6. The court shall not order a case into mediation where the amount in controversy exceed Fifty Thousand Dollars ($50,000.00). The determination of the amount in controversy shall be made by the court and, in making this determination, the court shall not consider the merits of questions of liability, defenses, or comparative negligence.
SECTION 7. In actions submitted to mediation pursuant to Section 4 of this act, a mediator shall be selected for the action within thirty (30) days of its submission to mediation. The method of selection and qualification of the mediator shall be as determined by the Mississippi Supreme Court. If the parties are unable to agree on a mediator within fifteen (15) days of the date of submission of the action to mediation, the court may select a mediator pursuant to standards adopted by the Mississippi Supreme Court.
SECTION 8. (1) Submission of an action to mediation pursuant to this act shall not suspend the running of the time limitations provided by law, except as provided in this section.
(2) If an action is or remains submitted to mediation pursuant to this act more than four (4) years and six (6) months after the plaintiff has filed the action, then the time beginning on the date four (4) years and six (6) months after the plaintiff has filed the action and ending on the date on which a statement of nonagreement is filed pursuant to Section 10 of this act shall not be included in computing the applicable statute of limitations.
SECTION 9. (1) The compensation of court-appointed mediators shall be determined by the Mississippi Supreme Court, except that no compensation shall be paid prior to the filing of a statement of nonagreement by the mediator pursuant to Section 10 of this act or prior to settlement of the action by the parties.
(2) All administrative costs of mediation, including compensation of mediators, shall be paid in the manner as determined by the Mississippi Supreme Court. Funds shall be equally available for the payment of mediators under this act.
SECTION 10. (1) In the event that the parties to mediation are unable to reach a mutually acceptable agreement and any party to the mediation wishes to terminate the mediation, then the mediator shall file a statement of nonagreement. This statement shall be in a form to be developed by the Mississippi Supreme Court.
(2) Upon the filing of a statement of nonagreement, the matter shall be calendared for trial, by court or jury, both as to law and fact, insofar as possible, so that the trial shall be given the same place on the active list as it had prior to mediation, or shall receive civil priority on the next setting calendar.
SECTION 11. All statements made by the parties during the mediation shall be subject to the Mississippi Rules of Evidence.
SECTION 12. Any party who participates in mediation pursuant to Section 4 of this act shall retain the right to obtain discovery.
SECTION 13. Any reference to the mediation or the statement of nonagreement filed pursuant to Section 10 of this act during any subsequent trial shall constitute an irregularity in the proceedings of the trial.
SECTION 14. It is the intent of the legislature that nothing in this act be construed to preempt other current or future alternative dispute resolution programs operating in the trial courts.
SECTION 15. (1) On or before January 1, 1999, the Administrative Office of Courts shall submit a report to the legislature concerning court alternative dispute resolution programs. This report shall include, but not be limited to, a review of programs operated in courts that have elected to apply this act, and shall examine, among other things, the effect of this act on the judicial mediation and arbitration programs of courts that have participated in that program.
(2) The Administrative Office of Courts shall, by rule, require that each court applying this act file with the Administrative Office of Courts such data as will enable the Administrative Office of Courts to submit the report required by subsection (1) of this section.
SECTION 16. Notwithstanding any other provision of law except the provisions of this act, the Mississippi Supreme Court shall provide by rule for all of the following:
(a) The procedures to be followed in submitting actions to mediation under this act.
(b) Coordination of the procedures and processes under this act.
(c) Exceptions for cause from provisions of this act. In providing for exceptions, the Mississippi Supreme Court shall take into consideration whether the civil action might not be amenable to mediation.
SECTION 17. This act shall take effect and be in force from and after July 1, 1997.