Missouri Code of State Regulations › Title 20 - DEPARTMENT OF COMMERCE AND INSURANCE › Division 4240 - Public Service Commission › Chapter 36 - Alternative Dispute Resolution Procedural Rules Governing Filings Made Pursuant to the Telecommunications Act of 1996 › Section 20 CSR 4240-36.030 - Mediation

Current through Register Vol. 49, No. 14, July 15, 2024
PURPOSE: This rule provides the procedures for
				  requesting and conducting mediations.
(1) Who May Request Mediation-A party engaged
				in a negotiation for interconnection, services, or unbundling of network
				elements under section 252 of the Act may request that the commission mediate
				unresolved issues. The request shall identify all parties to the negotiation
				and any time constraints on resolution of the issues.
(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.
The mediator shall be an employee of the commission unless
				  the parties consent to the appointment of an outside mediator. The costs of an
				  outside mediator shall be borne equally by the parties. The mediator shall be
				  disqualified from participating as an arbitrator or presiding officer in
				  subsequent proceedings regarding the same negotiation. Presiding officer is
				  defined in 4 CSR 240-2.120.
(4) Parties' Statements-Within
				thirteen (13) days after the filing of a request for mediation, each party to
				the negotiation shall submit a written statement to the mediator summarizing
				the dispute, and shall furnish such other material and information it deems
				appropriate to familiarize the mediator with the dispute. The mediator may
				request any party to provide supplemental material or information.
(5) Initial Mediation Conference-Unless the
				mediator advises the parties otherwise, the mediator shall convene an initial
				conference within two (2) days after the filing of the parties' statements or
				the date that they are due, whichever is earlier. At the initial conference,
				the parties and mediator shall discuss a procedural schedule, and attempt to
				identify, simplify and limit the issues to be resolved. Each party should be
				prepared to informally present its position and arguments to the mediator at
				the initial mediation conference and to engage in mediated negotiations on
				substantive issues.
(6) Conduct of
				the Mediation-The mediator, subject to the rules contained herein, shall
				control the procedural aspects of the mediation.
(7) Mediations Closed to the Public-To
				provide for effective mediation, participation in a mediation is strictly
				limited to the parties involved in the negotiation of the agreement
				contemplated by sections 251 and 252 of the Act that is the subject of the
				mediation. All mediation proceedings shall remain closed to the
				public.
(8) Caucusing-The mediator
				is free to meet and communicate separately with each party. The mediator shall
				decide when to hold such separate meetings. The mediator may request that there
				be no direct communication between the parties or between their representatives
				regarding the dispute without the concurrence of the mediator.
(9) Joint Meetings-The mediator shall decide
				when to hold joint meetings with the parties and shall fix the time and place
				of each meeting and the agenda thereof. Formal rules of evidence shall not
				apply to these meetings or any portion of the mediation proceeding.
(10) No Stenographic Record-No record,
				stenographic or otherwise, shall be taken of any portion of the mediation
				proceeding.
(11) Exchange of
				Additional Information-If any party has a substantial need for documents or
				other material in the possession of another party, the parties shall attempt to
				agree on the exchange of requested documents or other material. Further, if any
				party has substantial need for other information in the possession of another
				party, or if any party wishes to disclose to its employees information that it
				obtained from another party, the parties shall attempt to reach agreement on
				disclosure of the information and who may see it. Should they fail to agree,
				either party may request a joint meeting with the mediator who shall assist
				them in their effort to reach an agreement. The parties may enter into
				nondisclosure agreements. At the conclusion of the mediation process, upon the
				request of the party that provided the documents or other material to one or
				more of the mediating parties the recipients shall return such documents or
				material to the originating party without retaining copies thereof.
(12) Request for Further Information by the
				Mediator-The mediator may request any mediating party to provide clarification
				and additional information necessary to assist in the resolution of the
				dispute.
(13) Responsibility of the
				Parties to Negotiate and Participate-Parties are expected to initiate proposals
				for resolution of the dispute, including proposals for partial resolution. 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. At any time during
				the mediation, the mediator may recommend to the parties only, oral or written
				proposals for resolution of the dispute, in whole or in part.
(15) Reliance by Mediator Upon Experts- The
				mediator may use the services of and rely on experts retained by, or employed
				by, the commission for purposes of the mediation. Other than subsequent
				mediations, if any, such experts shall not participate, directly or indirectly,
				in any subsequent proceedings regarding the same negotiation. The mediator
				shall disclose to the parties the identities of all experts that provide any
				services to the mediator for purposes of the mediation.
(16) Impasse and Recommended Resolution of
				Mediator-In the event that the parties fail to resolve their dispute, the
				mediator, before terminating the mediation, shall submit to all of the parties
				a final proposed resolution that addresses all or part of the disputed issues.
				Each party shall advise the mediator within seven (7) days of the date the
				mediator issues the proposed resolution as to whether the party accepts the
				mediator's proposed resolution.
(17) Termination of the Mediation-Any of the
				following events shall terminate the mediation:
(A) The mediating parties execution of an
				agreement that resolves all disputed issues;
(B) Written service by a party on the
				mediator and other parties of a declaration that the mediation proceedings are
				terminated; or
(C) The mediator's
				submission to the parties and the commission of a written declaration that
				further mediation would be futile. Such a declaration shall be conclusory and
				neutrally worded to avoid any negative inference respecting any party to the
				mediation.