Rule 54. Mandatory appellate alternative dispute resolution procedures. Upon appeal pursuant to Rule 1 of a civil case defined in subsection (a) of this rule, the requirements of this rule shall apply.
     (a) Appeals subject to rule. The following categories of appeals shall be subject to the provisions of this rule:
     (1) Workers' compensation. All appeals from the Workers' Compensation Court.
     (2) 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 actions for termination of parental rights, paternity disputes, adoptions, and all juvenile and contempt proceedings when the excluded matters constitute the only issues on appeal.
     (3) Money judgments. Appeals in actions seeking monetary damages/recovery.
     (b) Time limitations. Upon filing a notice of appeal in the manner and time required by Rules 4 and 5, but substantially complying with Form 1 in the Appendix of Forms to this rule, the parties and the mediator shall have seventy-five (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 seventy-five (75) days from the filing of the notice of cross appeal.
     (c) 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 district court, hold the time requirements of other rules in abeyance pending completion of the process required by this rule. In the event the district court record has been transmitted to the supreme court, the parties shall file their stipulation with the clerk of the supreme court. In the event the parties stipulate to holding other time requirements 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 seventy-five (75) day time limit.
     (d) Selection or appointment and payment of mediator; immunity. Mediators shall be selected or appointed as provided in this subsection and shall enjoy such judicial immunity as the Montana 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, attorney's, and party's mediation evaluation forms.
     (1) The parties may jointly select a mediator for purposes of complying with the mediation process required by this rule within fifteen (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.
     (2) 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 2 in the Appendix of Forms to this rule, within the above-referenced fifteen (15) day deadline.
     (3) 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 on a list maintained by the clerk for that purpose pursuant to subsection (d)(4) of this rule. The order of appointment, substantially complying with Form 3 in the Appendix of Forms to this rule, shall be signed by the clerk of the supreme court and served upon the parties to the appeal.
     (4) The clerk of the supreme court shall maintain three 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 five (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 two (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.
     (5) The mediator's fee and incidental expenses shall be shared equally by the parties. However, in cases involving money judgements of $5,000 or less, any mediator appointed by the clerk of the supreme court under subsection (d)(3) 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.
     (e) Mediation process. The mediation process required by this rule shall comply with the procedures provided in this subsection.
     (1) 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 to resolve 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 settlement by facilitating communication; helping to clarify issues, interests, and the appellate perspective; fostering joint problem-solving; and exploring settlement alternatives.
     (2) 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.
     (3) The conference shall be held in person; except if distance, time or other considerations make it impractical, then the mediator may hold the conference 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.
     (4) 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 opposing counsel within fifteen (15) days of the date the notice of selection or order of appointment of the mediator is filed under subsection (d) of this rule. The responsive party shall have seven (7) days to submit a responsive statement of position. In the event of a cross appeal, the appellant shall have an additional seven (7) days to submit its statement of position relative to the issues raised by the cross appeal.
     (5) The parties' respective submissions shall not exceed ten (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.
     (6) The parties shall serve on the mediator and opposing counsel a written statement of position substantially complying with Form 4 in the Appendix of Forms to this rule and containing, at a minimum, the following:
     (i) a statement of issue(s) on appeal and the manner in which each issue was preserved; and
     (ii) a statement of the standard of review applicable to each issue; and
     (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.
     (7) 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 submission shall not exceed five (5) pages. Such additional submission, if any, shall be served on the mediator contemporaneously with the service of the party's statement of position.
     (8) Each party, or a representative of each party with authority to participate in settlement negotiations and effect a complete compromise of the case, shall be required to participate in the mediation conference. If an insurance carrier is involved, the representative with ultimate settlement authority for the insurance carrier shall participate in the mediation conference.
     (f) 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 Rule 408 of the Montana Rules of Evidence and are inadmissible pursuant to the terms of that Rule.
     (g) Completion of mediation process. Immediately upon the conclusion of the mediation conference, the mediator shall file a mediator's report substantially complying with Form 5 in the Appendix of Forms to this rule with the clerk of the district court and, concurrently, shall provide a copy to the clerk of the supreme court and to the parties.
     (1) Where the mediation results in resolution of the appeal, dismissal will be governed by Rule 36 of these rules. In the event the appeal is resolved, the parties shall execute a settlement agreement and file a stipulation for dismissal within fifteen (15) days of the filing of the mediator's report. If the parties have stipulated to hold the time requirements of these rules in abeyance pursuant to subsection (c) of this rule, then upon filing of the mediator's report or the expiration of the seventy-five (75) day time limit, whichever occurs first, all appellate time requirements shall resume as provided in subsection (c) of this rule.
     (2) None of the forms or notices 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.
     (3) 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.

     History: En. Sup. Ct. Ord. 95-300, April 15, 1996, eff. Oct. 1, 1996; amd. Sup. Ct. Ord. 95-300, June 17, 1997, eff. Oct. 1, 1997.