Alternative Dispute Resolution

Alternative Dispute Resolution


Alternative Dispute Resolution ("ADR") processes are alternative methods of helping people resolve legal problems before going to court. ADR involves an independent third person, called a "neutral" who tries to help resolve the conflict. 

The use of ADR early in a case can result in the more efficient, cost-effective resolution of disputes with greater satisfaction to the parties. 

Rule 114 of the Minnesota General Rules of Practice describes the procedures for deciding whether to use ADR.  The Rule mandates the court provides parties with information on ADR. Parties are required to discuss the use of ADR and address this issue in the informational statement filed with the court. If the parties are unable to make a decision on the use of an ADR process or a neutral, the court may order the parties to any number of ADR alternatives.  This does not mean parties are required to settle their differences through ADR. They are required, however, to at least discuss their differences with the neutral and attempt to resolve their differences prior to a trial.

Who Are The Neutrals?
When an ADR process is chosen, the parties should select an independent third party, called a neutral, from the ADR Neutrals Roster. The Office of Supreme Court Continuing Education maintains two ADR Neutrals Rosters, civil (non-family) and family. The neutrals on these rosters are professionals with a wide variety of backgrounds, some, but not all of whom, are attorneys. 

Types of ADR

Adjudicative Processes

Arbitration.  A forum in which each party and its counsel present its position before a neutral third party, who renders a specific award. If the parties stipulate in advance, the award is binding and is enforceable in the same manner as any contractual obligation.  If the parties do not stipulate that the award is binding, the award is not binding and a request for trial de novo (trial lawyer) may be made.

Consensual Special Magistrate.  A forum in which a dispute is presented to a neutral third party in the same manner as a civil lawsuit is presented to a judge.  This process is binding and includes the right of appeal.

Moderated Settlement Conference.  A forum in which each party and their counsel present their position before a panel of neutral third parties.  The panel may issue a non-binding advisory opinion regarding liability, damages, or both.

Summary Jury Trial.  A forum in which each party and their counsel present a summary of their position before a panel of jurors.  The number of jurors on the panel is six unless the parties agree otherwise.  The panel may issue a non-binding advisory opinion regarding liability, damages, or both.

Evaluative Processes

Early Neutral Evaluation. A forum in which attorneys present the core of the dispute to a neutral evaluator in the presence of the parties.  This occurs after the case is filed but before Discovery (the formal process of gathering information pertinent to the pending litigation, which may include written interrogatories, document production and depositions) is conducted.  The neutral then gives a candid assessment of the strengths and weaknesses of the case.  If settlement does not result, the neutral helps narrow the dispute and suggests guidelines for managing discovery.

Neutral Fact-Finding.  A forum in which a dispute, frequently one involving complex or technical issues, is investigated and analyzed by an agreed-upon neutral who issues findings and a non-binding report or recommendation.

 Facilitative Processes

 Mediation.  A forum in which a neutral third party facilitates communication between parties to promote settlement.  A mediator may not impose his or her own judgment on the issues for that of the parties.

Hybrid Processes

Mini-Trial.  A forum in which each party and their counsel present their opinion, either before a selected representative for each party, before a neutral third party, or both to define the issues and develop a basis for realistic settlement negotiations. A neutral third party may issue an advisory opinion regarding the merits of the case.  The advisory opinion is not binding unless the parties agree that it is binding and enter into a written settlement agreement.

Mediation-Arbitration. (Med-Arb).  A hybrid of mediation and arbitration in which the parties initially mediate their disputes; but if they reach impasse, they arbitrate the deadlocked issues.

Other.  Parties may by agreement create an ADR process.  They shall explain their process in the Informational Statement.

CODE OF ETHICS

The Minnesota Supreme Court has established a Code of Ethics applicable to all Rule 114 Qualified Neutrals.  The code sets forth rules for ethical conduct to guide neutrals in their practices, to inform and protect consumers of ADR services, and to ensure the integrity of the various ADR processes.

The ADR Ethics Board has established a procedure for handling complaints alleging that neutrals have failed to comply with the Code of Ethics.  A complaint must be in writing, signed by the complainant, and mailed or delivered to the ADR Review Board at the address below.  The complaint must identify the neutral and make a short and plain statement of the conduct forming the basis of the complaint.

Landon Ascheman is a qualified neutral under Rule 114 of the Minnesota General Rules of Practice.

This information is not all inclusive, and because of the ever-changing nature of the law, is not guaranteed to be accurate.  This information, as well as additional information, is available on the Minnesota Court website.  For more information, or a review of your case, please contact Ascheman & Smith for your free review.  Law@AschemanSmith.com 612-217-0077



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