20 CSR 4240-36.030 - Mediation

        20 CSR 4240-36.030 Mediation

        PURPOSE: This rule provides the procedures for requesting and conducting mediations.

        (1) Who May Request Mediation̶A 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 Mediation̶ 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 Mediator̶When 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 2402.120.

        (4) Parties' Statements̶Within 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 Conference̶Unless 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 Mediation̶The mediator, subject to the rules contained herein, shall control the procedural aspects of the mediation.

        (7) Mediations Closed to the Public̶To 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) Caucusing̶The 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 Meetings̶The 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 Record̶No record, stenographic or otherwise, shall be taken of any portion of the mediation proceeding.

        (11) Exchange of Additional Information̶If 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 Mediator̶The 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 Participate̶Parties 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 Mediator̶The 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 Experts̶ 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, direct-ly 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 Mediator̶In 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 Mediation̶Any 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.

        (18) Confidentiality̶

        (A) The entire mediation process shall be kept confidential, except for the terms of any final agreements reached during the mediation. The parties, the mediator and any experts used by the mediator, unless all parties agree otherwise, shall not disclose information obtained during the mediation process to anyone that did not participate in the mediation, including, but not limited to, commissioners, commission staff and third parties; provided, however, that the commissioners may be informed in writing, with a copy provided to each party to the mediation, of the identity of the participants and, in the most general manner, the progress of the mediation. Section 386.480, RSMo 2000 is applicable to mediations.

        (B) Except as the parties otherwise agree, the mediator, and any experts used by the mediator, shall keep confidential all information contained in any written materials, the materials themselves and any other information submitted to the mediator. All records, reports, or other documents received by the mediator while serving in that capacity shall remain confidential. The mediating parties and their representatives are not entitled to receive or review any such materials or information submitted to the mediator by another party or representative, without the concurrence of the submitting party. At the conclusion of the mediation, the mediator shall return to the submitting party all written materials and other documents which that party provided the mediator.

        (C) The mediator shall not divulge records, documents and other information submitted to him or her during the mediation proceeding, nor shall the mediator testify in regard to the mediation, in any subsequent adversarial proceeding or judicial forum. The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitration, judicial or other proceeding, any of the following:

        1. Views expressed or suggestions made by another party with respect to a possible resolution of the dispute;

        2. Statements made by another party in the course of the mediation;

        3. Proposals made or views expressed by the mediator; or

        4. The fact that another party had or had not indicated willingness to accept a resolution proposed by the mediator.

        (19) Post-Agreement Procedure̶The parties shall present to the commission for approval any final agreements reached during mediation. Such proposed agreements, on the face of the agreement, shall:

        (A) Not discriminate against a telecommunications carrier not a party to the mediated agreement;

        (B) Be consistent with the public interest, convenience and necessity; and

        (C) Comply with the commission's service quality standards for telecommunications services as well as the requirements of all other rules, regulations, and orders of the commission.

        AUTHORITY: section 386.410, RSMo 2000.* This rule originally filed as 4 CSR 24036.030. Original rule filed Dec. 30, 2003, effective Aug. 30, 2004. Moved to 20 CSR 4240-36.030, effective Aug. 28, 2019.

        *Original authority: 386.410, RSMo 1939, amended 1947, 1977, 1996.