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ADR, Arbitration & Mediation

Alternative Dispute Resolution (ADR), involves an independent third person or neutral party who tries to help resolve or narrow the areas of 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. A great majority of the civil cases, including marital dissolutions, personal injury actions, property and contract disputes filed in Minnesota State courts are settled without a trial. Yet, most cases do not settle until after the parties and courts have spent a lot of time, money, and emotional energy.

Minnesota courts recognize the effectiveness of ADR as a tool for settling conflicts. In response, the courts provide parties and their attorneys, if represented, with ADR information when they file a civil case. The parties must consider whether to use ADR to help resolve the dispute.

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.

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Key Concepts

Common Types of ADR

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.

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.

Early Neutral Evaluation. (ENE). 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.