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
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
(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
(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
(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
(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.
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
(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
(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
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.
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:
Views expressed or suggestions made by another party with respect to a possible
resolution of the dispute;
Statements made by another party in the course of the mediation;
3. Proposals made or views expressed by the
4. The fact that
another party had or had not indicated willingness to accept a resolution
proposed by the mediator.
Post-Agreement Procedure-The parties
shall present to the commission for approval any final agreements reached
during mediation. Such proposed agreements, on the face of the agreement,
(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
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.