It’s in your court: December 10, 2014

 

Alternative Dispute
Resolution
Over the past month the news has been filled with coverage of the NFL’s discipline of players Adrian Peterson and Ray Rice and the review of that discipline by an arbitrator. Professional athletes have contracts providing that disputes be submitted to binding arbitration which is generally outside of the judicial system and not appealable to a court. You probably have an arbitration provision in your health insurance contract, auto insurance contract, or credit card contract. 
It can be a very expensive process to bring a lawsuit or defend one, with or without an attorney. To reduce the costs of litigation and leave the parties with an “investment” in the outcome, Minnesota courts in 1994 adopted a rule requiring alternative dispute resolution (ADR) in most civil litigation. Many consumer purchase contracts and real estate purchase agreements require the parties to go to one of these alternative forums before, or in substitution for, litigating in court.
There are no less than nine different forums, other than the district court, in which disputes may be resolved, or the number of issues reduced, prior to a trial in court. These include mediation, arbitration and Early Neutral Evaluation (ENE). In each of these forums there is a “Neutral,” a person or organization that facilitates the ADR process for the parties and their attorneys. The State Court Administrator has a roster of “Qualified Neutrals” who have received the necessary training and continuing education to be so listed. If the parties cannot agree on the type of ADR process for their case, or who shall serve as a “Neutral,” the Court will issue an order determining the ADR process and “neutral,” as well as setting deadlines for completion of the ADR process. Generally the costs of ADR are divided equally between the parties by agreement, however, the court may allocate the costs if the parties cannot agree.
The ADR process generally is less formal and less expensive than litigation in court. Other important distinctions are:
1. The process is not open to the public
2. The proceeding is confidential
3. Discussions in non-binding ADR (such as mediation) are not admissible in evidence in subsequent court proceedings. This enables frank and open discussion and negotiation.
4. As the name suggests, non-binding ADR does not require the parties to follow the agreement reached during ADR and the agreement is not enforceable
5. “Neutrals” may not be subpoenaed to testify in court about what happened in ADR.  For example, a mediator in a child custody dispute may not be called to testify as a witness to what was said by a party in mediation
6. No record (court reporter) of the proceeding is kept except as agreed by the parties
7. ADR generally should not be used when an immediate legal remedy is required
ENE is a process in which at the very beginning of a divorce a panel of attorneys meets with the parties to the divorce and their attorneys to attempt to resolve all issues or minimize the number of disputed issues by providing the parties with a realistic evaluation of likely outcomes if the case went to trial by a judge. The goals of ENE are to: enhance direct communication between the parties about their claims and supporting evidence; provide an assessment of the merits of the case by a neutral expert; provide a “reality check” for clients and lawyers; identify and clarify the central issues in dispute; assist with discovery and motion planning or with an informal exchange of key information, and facilitate settlement discussions, when requested by the parties. ENE is intended to provide the parties with an unbiased, non-judicial assessment of their positions in order to facilitate settlement.  This, hopefully, allows the parties to avoid thousands of dollars in attorneys’ fees and the commonly-felt anguish of lengthy litigation. Some judges will tell parents, “You can pay to put your lawyer’s kids through college, or your own kids.  It is your choice.” Again, ENE is a “reality check.”
When it works, mediation can produce a “win-win” solution.  Mediators generate creative discussions about a range of options.  Rather than just aiming for an acceptable compromise, they will try to end up with an agreement which reflects the best possible outcome for all involved.  Research on family mediation indicates that agreements reached through mediation are more likely to work out in practice, and to last longer, than those imposed by a court.
Many litigants complain about the high costs associated with court proceedings.  ADR is a means to reduce these costs and achieve an overall more favorable resolution to disputes.  Information on ADR is available at www.mncourts.gov by clicking the link to “Programs and Services” and then click “Alternative Dispute Resolution.”
Submitted by Judge Steve Halsey, Wright County District Court, chambered in Buffalo.  Judge Halsey is the host of “The District Court Show” on local cable TV public access channels throughout the Tenth Judicial District.  Excerpts can be viewed at WWW.QCTV.org.  Go to Community and click “The District Court Show.”  Judge Halsey may also be heard on “Legal Happenings” on KRWC 1360 AM (Buffalo) on Saturdays at 12:30 p.m.  
 
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