Law Advisor - Alternative Dispute Resolution in Montana

INTRODUCTION

Supreme Court justice Sandra Day O' Connor has said, "Courts of this country should not be the places where the resolution of disputes begins. They should be the places where disputes end - after alternative methods of resolving disputes have been considered and tried."'

Almost everyone is aware of the court system and its part in settling legal disputes. Not everyone is aware of the alternatives. This brochure explains some other ways to settle legal disputes. Other ways to settle legal disputes are often referred to as Alternative Dispute Resolution (ADR).

Use of ADR procedures is increasing as more judges, attorneys and the public have experienced the availability and benefits of ADR. If you want additional information about an ADR procedure, contact your attorney or the State Bar of Montana, in Helena, Montana, at (406) 442-7660.

LEGAL BASIS FOR ADR

Some state and federal laws require the use of ADR procedures. Other state and federal laws and court rules encourage the use of ADR procedures. Use of ADR procedures can help reduce the courts' case loads. The five most commonly used ADR procedures are: arbitration, mediation, mini-trials, moderated settlement conferences, and summary jury trials.

ARBITRATION

In arbitration proceedings, the parties select an impartial third-party arbitrator or a panel of arbitrators. The panel is usually made up of three neutral arbitrators or one neutral and two non-neutral arbitrators. The arbitrator(s) meet with the parties, listen to each party's presentation of fact and law, and make an award. Before arbitration starts, the parties may decide whether the arbitration will be binding or non-binding. They may also agree that the arbitration will be confidential. If an agreement for binding arbitration is made, the arbitrators award is enforceable like a court judgment. If the parties agree on non-binding arbitration, the arbitrator's award only provides additional information for use in further settlement negotiations. Non-binding arbitration is generally used when parties desire a neutral case evaluation coupled with an advisory monetary award.

Most arbitrations are informal hearings. Each party presents its position. The parties, the attorneys and the arbitrator ask questions and discuss the issues. Finally the arbitrator makes an award. More complex arbitrations often involve an exchange of information by the parties, a more formalized hearing & and pre-hearing or post-hearing briefings.

The rules for non-binding arbitration are found in state laws, local rules referencing state law, and local court rules. The preferences of the parties and arbitrator are also considered.

Generally, parties are free to use any arbitration procedures they desire as long as those procedures do not conflict with the limited safeguards established by the State and Federal Arbitration Acts.

When arranging for an arbitration, the type of hearing and relevant statutes should be specified. This may help to avoid later disputes between the parties. Parties agreeing to arbitrate should also be aware that binding arbitration awards may be reversed only on very limited grounds.

MEDIATION

Mediation is a confidential meeting where a mediator helps parties exchange information and consider possible solutions. A mediator does not issue orders, give opinions on how the case should be resolved or advocate for either party.

Mediation is a non-adversarial, cooperative method which clears the way for open and helpful communication between the parties. Mediation is particularly helpful where the parties will be involved in an ongoing relationship after the dispute is resolved, such as families, business associates, landlords and tenants, and others.

The mediator makes sure all parties have an equal chance to be heard. Parties are encouraged to express emotions and frustrations which may be interfering with negotiations. The mediator helps identify the issues and possible solutions.

Mediation is the least formal ADR procedure. In many cases, the parties' lawyers do not attend because mediation focuses on the parties' wishes. Parties are generally happier with a mediated settlement because they are given a way to solve their own difficulties. The length of a mediation depends on the nature of the dispute, the number of issues, the parties commitment to mediation and the communication skills of the parties and the mediator. Mediation may consist of one session lasting three to four hours or may require many sessions.

MINI-TRIAL

The mini-trial is used when parties want to resolve the issue while protecting their relationship or future business interests. Most often, parties in a mini-trial are a corporation or a governmental agency.

The mini-trial is a flexible procedure. Parties decide the content, structure, and duration of the procedure.

In a mini-trial, parties select an impartial expert to act as a neutral party. Each party's attorney presents its best case to the parties (represented by top decision makers with authority to settle) and to the neutral party. Next, the decision makers meet and negotiate. The decision makers may meet either with or without the neutral party. The goal is to reach a business decision rather than answer a specific legal question.

The mini-trial offers executives and officials a chance to do what they do best, which is to identify key issues and take immediate action. This ADR procedure often results in creative and practical solutions. Large corporations or governmental agencies prefer the confidentiality and efficiency of a mini-trial.

SETTLEMENT CONFERENCE

In a settlement conference, the case is presented to an impartial panel or a judge. Each party's attorney presents a case summary to the panel or judge. The panel or judge may ask questions. Then, the parties' attorneys make brief closing statements.

Afterwards, the panel or judge may meet privately with each party and attorney and evaluate the strengths and weaknesses of the case.

Each of the parties hear its case compared and contrasted with the other party's case. The parties also hear an objective third party opinion of each of its case's strengths and weaknesses, providing a "reality check." This "reality check" often leads to settlement or more productive negotiations.

SUMMARY JURY TRIAL

A summary jury trial is used when a full jury trial would take a long time. A summary jury trial is completed in a day or less.

In a summary jury trial, the parties present their case to a jury. A summary jury trial is similar to a jury trial. Some court rules are formal while others are relaxed. The judge makes rules about the admissibility of evidence and conduct of the procedure. The jury's decision is advisory. The procedure lets the parties experience a formal court hearing and see how a jury looks at their case.

Jurors for a summary jury trial are selected from the regular jury panel. The jurors are not told their decision is advisory until after a decision has been made. The parties and attorneys can discuss the decision with the jurors.

JUDGE PRO TEMPORE

Montana law provides a procedure for use of a Judge ProTempore or a "Judge Pro Tem." In a lawsuit which has already been filed in District Court, the parties can have the action transferred to a Judge Pro Tem for immediate trial and decision. A judge Pro Tem must be a lawyer with the same qualifications as a District Judge and the case is tried in the same manner as it would be before an elected District Judge.

WHAT WILL ADR COST?

Mediators, arbitrators and other practitioners in ADR charge varying fees for services. Fees can range from $50.00 and $150-00 per hour for services, or they may charge a flat fee for the entire procedure.

Parties should consult in advance with the person they select so the fee arrangement is fully understood by the parties. A common practice is for the parties to share the fee equally. In some cases, the services of a mediator may be free of charge. The Clerk of the District Court may have information about such services.

The information in this pamphlet reflects Montana law. It is intended to inform and not to advise. It is not intended to apply to any specific situation. A person who is a resident of or who owns property in another state should consult the laws of that state.