|01-25-2016, 05:15 PM||#1|
Making The Magic Happen
Mother Of The Board
Join Date: Feb 2009
Location: Florida ::::::: GO GATORS!!!!!!!
Posts: 4,483Rep Power: 1
Minnesota Alternative Dispute Resolution
ADR in the Minnesota State Court System
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. Neutrals on a facilitative/hybrid panel are required to complete 40 hours of training prior to serving in family law matters. Those on the civil non-family panel must attend 30 hours of training. There are additional training requirements for neutrals on the adjudicative and evaluative panels. All neutrals on the family law roster have had 6 hours of training on domestic abuse issues.
Parties are responsible for paying the neutral for their services. Typically, fees are based on an hourly rate established by the neutral. ADR services provided by some organizations have established a sliding fee scale based on the parties’ incomes. It is assumed that the parties will split the cost of the ADR process equally. Parties may, however, agree on a different allocation. Parties should be sure to discuss fees and payments prior to entering into an ADR agreement.
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.
Information regarding the complaint procedure and copies of the Code of Ethics are available from the Board at the address listed below.
ADR Ethics Board
120 Minnesota Judicial Center
25 Rev. Dr. Martin Luther King Jr. Blvd.
St. Paul, MN 55155-1500
Phone: (651) 297-7590
Fax: (651) 297-1173
ALTERNATIVE DISPUTE RESOLUTION
ADR in the Minnesota State Court System
WHAT IS ADR?
Since the early 1980's, alternative methods have been developed to help people resolve legal problems, without resorting to litigation. These techniques, known as alternative dispute resolution (ADR), involve an independent third person or neutral 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, 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, and the taxpaying public has borne a great deal of expense.
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.
TYPES OF ADR
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.
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.
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.
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.
please add what you know to this thread,
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|01-25-2016, 05:20 PM||#2|
Making The Magic Happen
Mother Of The Board
Join Date: Feb 2009
Location: Florida ::::::: GO GATORS!!!!!!!
Posts: 4,483Rep Power: 1
Re: Minnesota Alternative Dispute Resolu
518.1751 PARENTING TIME DISPUTE RESOLUTION.
Subdivision 1.Parenting time expeditor.
Upon request of either party, the parties' stipulation, or upon the court's own motion, the court may appoint a parenting time expeditor to resolve parenting time disputes that occur under a parenting time order while a matter is pending under this chapter, chapter 257 or 518D, or after a decree is entered.
A party may not be required to refer a parenting time dispute to a parenting time expeditor under this section if:
(1) one of the parties claims to be the victim of domestic abuse by the other party;
(2) the court determines there is probable cause that one of the parties or a child of the parties has been physically abused or threatened with physical abuse by the other party; or
(3) the party is unable to pay the costs of the expeditor, as provided under subdivision 2a.
If the court is satisfied that the parties have been advised by counsel and have agreed to use the parenting time expeditor process and the process does not involve face-to-face meeting of the parties, the court may direct that the parenting time expeditor process be used.
Subd. 1b.Purpose; definitions.
(a) The purpose of a parenting time expeditor is to resolve parenting time disputes by enforcing, interpreting, clarifying, and addressing circumstances not specifically addressed by an existing parenting time order and, if appropriate, to make a determination as to whether the existing parenting time order has been violated. A parenting time expeditor may be appointed to resolve a onetime parenting time dispute or to provide ongoing parenting time dispute resolution services.
(b) For purposes of this section, "parenting time dispute" means a disagreement among parties about parenting time with a child, including a dispute about an anticipated denial of future scheduled parenting time. "Parenting time dispute" includes a claim by a parent that the other parent is not spending time with a child as well as a claim by a parent that the other parent is denying or interfering with parenting time.
(c) A "parenting time expeditor" is a neutral person authorized to use a mediation-arbitration process to resolve parenting time disputes. A parenting time expeditor shall attempt to resolve a parenting time dispute by facilitating negotiations between the parties to promote settlement and, if it becomes apparent that the dispute cannot be resolved by an agreement of the parties, the parenting time expeditor shall make a decision resolving the dispute.
(a) The parties may stipulate to the appointment of a parenting time expeditor or a team of two expeditors without appearing in court by submitting to the court a written agreement identifying the names of the individuals to be appointed by the court; the nature of the dispute; the responsibilities of the parenting time expeditor, including whether the expeditor is appointed to resolve a specific issue or on an ongoing basis; the term of the appointment; and the apportionment of fees and costs. The court shall review the agreement of the parties.
(b) If the parties cannot agree on a parenting time expeditor, the court shall provide to the parties a copy of the court administrator's roster of parenting time expeditors and require the parties to exchange the names of three potential parenting time expeditors by a specific date. If after exchanging names the parties are unable to agree upon a parenting time expeditor, the court shall select the parenting time expeditor and, in its discretion, may appoint one expeditor or a team of two expeditors. In the selection process the court must give consideration to the financial circumstances of the parties and the fees of those being considered as parenting time expeditors. Preference must be given to persons who agree to volunteer their services or who will charge a variable fee for services based on the ability of the parties to pay for them.
(c) An order appointing a parenting time expeditor must identify the name of the individual to be appointed, the nature of the dispute, the responsibilities of the expeditor including whether the expeditor is appointed to resolve a specific issue or on an ongoing basis, the term of the appointment, the apportionment of fees, and notice that if the parties are unable to reach an agreement with the assistance of the expeditor, the expeditor is authorized to make a decision resolving the dispute which is binding upon the parties unless modified or vacated by the court.
Subd. 2a.Fees. Prior to appointing the parenting time expeditor, the court shall give the parties notice that the fees of the expeditor will be apportioned among the parties. In its order appointing the expeditor, the court shall apportion the fees of the expeditor among the parties, with each party bearing the portion of fees that the court determines is just and equitable under the circumstances. If a party files a pro se motion regarding a parenting time dispute and there is not a court order that provides for apportionment of the fees of an expeditor, the court administrator may require the party requesting the appointment of an expeditor to pay the fees of the expeditor in advance. Neither party may be required to submit a dispute to a visitation expeditor if the party cannot afford to pay for the fees of an expeditor and an affordable expeditor is not available, unless the other party agrees to pay the fees. After fees are incurred, a party may by motion request that the fees be reapportioned on equitable grounds. The court may consider the resources of the parties, the nature of the dispute, and whether a party acted in bad faith. The court may consider information from the expeditor in determining bad faith.
Subd. 2b.Roster of parenting time expeditors.
Each court administrator shall maintain and make available to the public and judicial officers a roster of individuals available to serve as parenting time expeditors, including each individual's name, address, telephone number, and fee charged, if any. A court administrator shall not place on the roster the name of an individual who has not completed the training required in subdivision 2c.
If the use of a parenting time expeditor is initiated by stipulation of the parties, the parties may agree upon a person to serve as an expeditor even if that person has not completed the training described in subdivision 2c. The court may appoint a person to serve as an expeditor even if the person is not on the court administrator's roster, but may not appoint a person who has not completed the training described in subdivision 2c, unless so stipulated by the parties. To maintain one's listing on a court administrator's roster of parenting time expeditors, an individual shall annually submit to the court administrator proof of completion of continuing education requirements.
Subd. 2c.Training and continuing education requirements.
To qualify for listing on a court administrator's roster of parenting time expeditors, an individual shall complete a minimum of 40 hours of family mediation training that has been certified by the Minnesota supreme court, which must include certified training in domestic abuse issues as required under Rule 114 of the Minnesota General Rules of Practice for the District Courts. To maintain one's listing on a court administrator's roster of parenting time expeditors, an individual shall annually attend three hours of continuing education about alternative dispute resolution subjects.
Subd. 3.Agreement or decision.
(a) Within five days of notice of the appointment, or within five days of notice of a subsequent parenting time dispute between the same parties, the parenting time expeditor shall meet with the parties together or separately and shall make a diligent effort to facilitate an agreement to resolve the dispute. If a parenting time dispute requires immediate resolution, the parenting time expeditor may confer with the parties through a telephone conference or similar means. An expeditor may make a decision without conferring with a party if the expeditor made a good faith effort to confer with the party, but the party chose not to participate in resolution of the dispute.
(b) If the parties do not reach an agreement, the expeditor shall make a decision resolving the dispute as soon as possible but not later than five days after receiving all information necessary to make a decision and after the final meeting or conference with the parties. The expeditor is authorized to award compensatory parenting time under section 518.175, subdivision 6, and may recommend to the court that the noncomplying party pay attorney's fees, court costs, and other costs under section 518.175, subdivision 6, paragraph (d), if the parenting time order has been violated. The expeditor shall not lose authority to make a decision if circumstances beyond the expeditor's control make it impracticable to meet the five-day timelines.
(c) Unless the parties mutually agree, the parenting time expeditor shall not make a decision that is inconsistent with an existing parenting time order, but may make decisions interpreting or clarifying a parenting time order, including the development of a specific schedule when the existing court order grants "reasonable parenting time."
(d) The expeditor shall put an agreement or decision in writing and provide a copy to the parties. The expeditor may include or omit reasons for the agreement or decision. An agreement of the parties or a decision of the expeditor is binding on the parties unless vacated or modified by the court. If a party does not comply with an agreement of the parties or a decision of the expeditor, any party may bring a motion with the court and shall attach a copy of the parties' written agreement or decision of the expeditor. The court may enforce, modify, or vacate the agreement of the parties or the decision of the expeditor.
Subd. 4.Other agreements.
This section does not preclude the parties from voluntarily agreeing to submit their parenting time dispute to a neutral third party or from otherwise resolving parenting time disputes on a voluntary basis.
(a) Statements made and documents produced as part of the parenting time expeditor process which are not otherwise discoverable are not subject to discovery or other disclosure and are not admissible into evidence for any purpose at trial or in any other proceeding, including impeachment.
(b) Sworn testimony may be used in subsequent proceedings for any purpose for which it is admissible under the Rules of Evidence. Parenting time expeditors, and lawyers for the parties to the extent of their participation in the parenting time expeditor process, must not be subpoenaed or called as witnesses in court proceedings.
(c) Notes, records, and recollections of parenting time expeditors are confidential and must not be disclosed to the parties, the public, or anyone other than the parenting time expeditor unless:
(1) all parties and the expeditor agree in writing to the disclosure; or
(2) disclosure is required by law or other applicable professional codes.
Notes and records of parenting time expeditors must not be disclosed to the court unless after a hearing the court determines that the notes or records should be reviewed in camera. Those notes or records must not be released by the court unless it determines that they disclose information showing illegal violation of the criminal law of the state.
Subd. 5.Immunity. A parenting time expeditor is immune from civil liability for actions taken or not taken when acting under this section.
Subd. 5a.Removal. If a parenting time expeditor has been appointed on a long-term basis, a party or the expeditor may file a motion seeking to have the expeditor removed for good cause shown.
§Subd. 6.Mandatory parenting time dispute resolution. Subject to subdivision 1a, a judicial district may establish a mandatory parenting time dispute resolution program as provided in this subdivision. In a district where a program has been established, parties may be required to submit parenting time disputes to a parenting time expeditor as a prerequisite to a motion on the dispute being heard by the court, or either party may submit the dispute to an expeditor. A party may file a motion with the court for purposes of obtaining a court date, if necessary, but a hearing may not be held until resolution of the dispute with the parenting time expeditor. The appointment of an expeditor must be in accordance with subdivision 2. Expeditor fees must be paid in accordance with subdivision 2a.
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