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Old Pueblo Legal Observer


Posted by Honorable (Ret.) Nanette M. Warner | Jul 13, 2015 | 0 Comments

           This article will discuss the increasing popularity of what has been termed as "alternative dispute resolution,” or ADR, and provide an overview of the more popular types of ADR.

            For decades, legal disputes were traditionally resolved by court action, wherein one person (or company) instituted a lawsuit against another in a court of law. In the last century, lawsuits began clogging the courts.  Resolution of legal disputes often took years and was costly. Appeals to higher courts followed the judgment of the trial court. Only the financially well off could afford lawsuits due to legal fees, unless the matter lent itself to a contingent fee. For many, justice delayed equaled justice denied.  It was commonly viewed that the attorneys primarily benefited financially from the protracted litigation by their legal fees. In the 1980s, lawyers and judges began asking if there was a better way to resolve disputes.  Thus, began the big push for what was then captioned as alternative dispute resolution.

             Arbitration is the oldest form of commonly used ADR.  Arbitration is simply the use of a private judge, called an arbitrator or panel of arbitrators (usually three). For the most part, the parties to an arbitration are bound by the decision of the arbitrator. Many commercial disputes and claims arising out of insurance policies, like uninsured and underinsured automobile coverage, have been required by virtue of the contract to resolve disputes through arbitration, using either one arbitrator or a panel of three arbitrators. Many contracts required that the arbitration be done through the American Arbitration Association, which contracts with trained attorneys and other professionals who agreed to serve as arbitrators. The cost of the arbitration, including the fees of the arbitrator, is borne by the parties, unless the arbitrator agreed to serve without charge.  Most states have laws governing arbitration.  Because there is generally no appeal from the arbitrator's decision, the legal dispute may be resolved quicker than if the legal dispute had wended its way through the court system.

            Additionally, civil matters over which the Arizona Superior Court has jurisdiction and where the amount in controversy does not exceed $50,000 are automatically referred to arbitration by an arbitrator chosen by the court.  These arbitration decisions can be appealed to the superior court subjected to certain limitation.

            The widespread use of mediation started in the 1980s.  Around the same time, trial judges were being trained in conducting settlement conferences for lawsuits already pending in the courts.  Court rules were being revised to require private mediation or judge conducted settlement conference before a case could proceed to trial.

            In a settlement conference, a sitting trial judge or a specially appointed judge assists parties in resolving their lawsuit which is already in the court system before it goes to trial.  A judge may not be a settlement conference judge in a case where she will be sitting as the trial judge if the case does not settle, unless the parties agree.  With few exceptions, settlement conferences are mandatory in family law cases unless the parties agree to private mediation.  Likewise, in civil cases in Arizona, with some exceptions, the trial court may order a mandatory settlement conference at the request of either party or on the “court's own motion.”  These conferences are generally conducted "off the record," unless the parties reach an agreement.  The agreement is then reduced to writing or put on the record to make the terms of the agreement binding on all parties.  As a result of settlement conferences and mediations, the number of cases actually going to trial has been reduced to the low single digits.  Furthermore, if the case advances to appeal, the Arizona Court of Appeals orders settlement conferences in certain cases before the case is argued.  This effort has resulted in a number of cases resolving before an appellate decision.

            Arizona is one of the few states where judges conduct settlement conferences in criminal cases.  Usually, the purpose of a criminal settlement conference is to determine if the State and the Defendant can reach a "plea agreement" wherein the defendant will plead guilty to a charge or allegations other than the original charges. However, procedures for criminal settlement conferences are different from civil settlement conferences. The entire conference is on the record, with all the attorneys, the defendant and victim present with the judge. To the surprise of many, these conferences resolve criminal cases, resulting in reduced criminal trial dockets and saving the taxpayer money.

            In mediation, a person or, at times, two people, serve as mediator.  A mediator acts as a neutral and assists the parties to a dispute to reach a resolution of their dispute. The mediator may or may not be law trained. Unlike an arbitrator, a mediator cannot decide the dispute. Also unlike an arbitration or settlement conference, for the most part, mediation is voluntary.[1]  Where the parties to the dispute are paying for the mediator, they may choose their mediator. There are community mediators who volunteer their time to assist in resolution of neighborhood and other disputes between community members. In Pima County, the Conciliation Court employs mediators trained in behavioral health and family and marital issues to assist parents who are divorcing or who have never married to develop parenting plans for their children without charge to the parents.  In Juvenile Court, mediators assist parents, children and the Department of Child Safety to reach agreements where children have been removed from their parents' custody due to allegations of abuse or neglect.

            In my next blog, I will discuss private mediation in detail and how it can help people before or after the filing of a lawsuit to resolve their differences in a positive win-win for everyone.

            Dispute resolution, other than by trial with a judge and jury and subsequent appeals, is no longer the "alternative" means of resolving a legal dispute.  It is strongly encouraged and frequently mandated. Before or after the instigation of a legal action, parties to a dispute are finding that the use of other dispute resolution mechanisms saves them money and emotional distress and results in a more satisfactory resolution Therefore, while the term "alternative" may be referenced in court rules for dispute resolution that differs from the traditional trial and appeal, it is no longer considered an “alternative” means of resolving a dispute. 

[1] Some contracts require mediation before a lawsuit is filed or arbitration instituted.  In Pima County, mediation is required before legal decision-making or parenting time in family law cases is litigated.  Likewise, the parties to a dependency or severance action in juvenile court can be compelled to mediation or a settlement conference.

About the Author

Honorable (Ret.) Nanette M. Warner

Retired Judge Warner focuses her work in the area of alternative dispute resolution, conducting mediations and arbitrations and uses other dispute resolution procedures as the case and the parties dictate. She emphasizes the areas of family law, personal injury, professional liability, commercial, probate and employment law, and is willing to consider mediation of other types of cases. Judge Warner is also available for service as an attorney in the areas of family law, medical and legal malpractice and probate litigation.


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