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New Mediation Rules May Revamp Civil Litigation in Kentucky

Mediation, a quicker and more cost-effective alternative to litigation, has long been a voluntary option for parties in civil disputes. Now, the Kentucky Supreme Court has adopted rule changes that make court-ordered mediation commonplace in the litigation process. As a result, more lawsuits are likely to be resolved by this method.

The new rules, which took effect on Feb. 1, 2022, give courts the authority to refer all or part of a civil case to mediation and to appoint a mediator — a neutral third party who helps settle some or all of the contested issues. The mediation will remain fully independent of, and outside of, the court proceeding but the court has the discretion to enforce its order to mediate.

In deciding whether to order mediation, the court is required to consider these factors:

  1. The stage of the litigation, including whether discovery has been conducted
  2. The nature of the issues to be resolved
  3. The value to the parties of confidentiality, rapid resolution or maintenance of ongoing relationships
  4. The willingness of the parties to mutually resolve their dispute
  5. Other attempts at dispute resolution that may have been made
  6. The ability of the parties to participate in the mediation process, including virtual mediation
  7. The cost to the parties

Mediation will not be ordered in any case where a court determines that one party may pose a risk of harm to others.

Once mediation is ordered, the litigants have 15 days to agree on a mediator and if they don’t, the court can select one. A mediator must be a Kentucky lawyer and comply with a code of conduct that, among other things, requires them to remain competent in mediation skills. Payment of the mediator’s fees is typically shared among the parties. The attorneys for the parties schedule a mediation conference. The mediator confers with the attorneys (and any unrepresented parties) to work out procedures for the conference and may require them to submit confidential statements of the case in advance. The parties’ representatives at the conference must have full authority to negotiate a settlement.

Although mediation is a separate process, the court must be kept advised of its progress. The parties are required to submit a joint statement to the court enumerating the issues that have been resolved and those that remain for trial. The parties may also identify any matters that, if resolved or completed, would facilitate a settlement. The court in its discretion may encourage the parties to continue discussions, with the goal of avoiding or limiting a trial.

At the commercial litigation firm of Hemmer DeFrank Wessels, PLLC, our attorneys are experienced in mediation and are ready to take maximum advantage of this process in your behalf. One of our attorneys is a qualified Kentucky mediator. Call us at 859-344-1188 or contact us online to schedule a consultation at our Fort Mitchell office.