Minnesota Statute 484.76 authorizes district courts to order alternative dispute resolution (“ADR”) if they see fit. In all civil actions MN courts now require attorneys to inform their clients about ADR options. If parties cannot agree on an ADR process or on a neutral decision-maker, the court has the authority to order a certain method of ADR. The goal of ADR is to create more efficient, cost-effective resolution of disputes so that the court systems will be less of a burden on our taxpayers. There is growing support for ADR in the judicial system as well as in workplaces, churches, and even the international context.
Typical Alternative Dispute Resolution Process
In most ADR process, a neutral third-party listens to the arguments of both sides and issues a decision or opinion. Minnesota General Rules of Practice, Rule 114.13 requires all neutrals to have certain training and continuing education. The State Court Administrator has two rosters of neutrals, civil (non-family) and family, who have met the training and continuing education requirements in Rule 114.13. Not all neutrals are attorneys, but all are governed by a code of ethical conduct set forth by the MN Supreme Court. The neutral typically establishes a fee based on an hourly rate, and the parties typically split this cost, unless they agree otherwise.
Types of ADR
All parties to a suit are required to consider ADR before proceeding to trial, but there must be agreement between the parties before they can proceed. They have to agree on a process, a neutral, rules of procedure, and whether the decision will be binding or non-binding. If they can’t agree on one of the listed methods, they may craft their own. The purpose of ADR is to settle as many claims as possible outside of the courtroom, so parties to a suit have wide freedom to craft their own process. Rule 114.02 outlines the usual processes which are used:
- Arbitration: It can be binding or non-binding, according to the agreement of the parties. If it’s binding, it must comply with Minn Stat. 572.08 – 572.30 (Uniform Arbitration Act). The rules of procedure can be set by the parties, but usually follow the Uniform Arbitration Act or the rules in Minnesota Rule 114.09 (b)-(f). Alternatively, the parties can set their own rules of procedure.
- Consensual special magistrate: A binding procedure involving all the regular rules which apply to civil lawsuits, including the right of appeal to the Minnesota Court of Appeals.
- Summary Jury Trial: A sort of mock jury trial, which involves six non-biased individuals sitting as a jury, hearing both arguments, and returning an advisory opinion regarding liability and/or damages.
- Early Neutral Evaluation: After filing but before discovery, Attorneys, with their clients, present the core of the dispute to a neutral evaluator, who gives his assessment of the case. This usually helps narrow the dispute and discovery.
- Non-binding Advisory opinion: The attorneys, with their clients, present their position before one or more neutrals, who issue a non-binding advisory opinion.
- Neutral fact-finding: A neutral investigates and analyzes a factual dispute and issues findings, which are non-binding.
- Mediation: A neutral third party facilitates communications between parties to promote settlement.
- Mini-Trial: Attorneys, with their clients, present their positions to selected representatives for each party and/or a neutral third party to develop a basis for settlement negotiations.
- Mediation-Arbitration: A hybrid of mediation and arbitration, starting with mediation, and resorting to arbitration on any deadlocked issues.
- Other: Parties may create an ADR process, so long as they explain it in their Informational Statement.
Benefits of ADR
One of the benefits of ADR is increased access to legal representation in the form of lower costs. The cost is lower in ADR because it requires much less of an attorney’s time than formal litigation. The benefit of having an attorney is very high in ADR. It is unlikely that ADR will give sufficient protection to an individual’s rights without adequate legal representation. In the judicial system, there are constitutional safeguards to the rights of the individual which are not present in ADR processes. Having an attorney present at the ADR will ensure that the outcome is fair and just, without the high cost of lengthy litigation.