Court-Annexed ADR Programs
PURPOSE:
The Court-Annexed ADR (Alternative Dispute Resolution) Programs offer options to the traditional judicial system, affording the citizens of Utah a full spectrum of choices for resolving disputes.
HISTORY:
Formal litigation has been used to resolve civil disputes for centuries. The outcomes of formal litigation are often costly, time consuming, and rigid. Mediation and arbitration are two alternative dispute resolution mechanisms now available through the courts. Both of these processes have been shown to provide effective resolutions to disputes, and can be faster, less expensive, and more satisfying to the parties than litigation. The Alternative Dispute Resolution programs encourage the use of ADR to the extent that it serves the interests of the involved parties. It is not intended to replace traditional litigation, only to supplement it, and to provide more flexibility in resolving disputes. In the 1994 session, Utah's legislature passed a bill (78-31b-1-13) mandating the Judicial Council to implement a program utilizing Alternative Dispute Resolution in the state courts. The program was implemented by the Judicial Council and Supreme Court rules on January 1, 1995. The Court Rule (4-510) applies to cases filed in the Second, Third, and Fourth Judicial Districts. The program encourages the use of ADR to the extent that it serves the interests of the involved parties. It is not intended to supplant traditional litigation, only to supplement it, and to provide more flexibility and choice of methods used to resolve disputes.
PROGRAM:
The program offers two ADR Processes: Mediation and Non-Binding Arbitration:Mediation: A collaborative meeting in which the disputing parties seek to resolve their differences through the use of a skilled, neutral third party, the mediator. As a dispute resolution process, mediation has the advantages of being informal, confidential, and collaborative. It proceeds more quickly than litigation, and often results in less expenditures of time and money. The final agreement is not imposed upon the disputants; instead the disputants design it according to their own interests. Finally, it is not an adversarial process, so the parties have the potential to preserve their relationship once the process has concluded.
Arbitration: Arbitration is an evidentiary hearing, similar to a trial, in which the arbitrator hears arguments, reviews evidence, rules on motions where appropriate, and determines awards. It is less formal than litigation and somewhat more collaborative in that the parties choose the arbitrator together and agree upon the extent of discovery. It can be convened and conducted more quickly than a formal trial, and it is also confidential. In the case of non-binding arbitration, the award can be accepted and reduced to an agreement, or rejected by the parties in favor of a trial de novo.
- One or more parties file with the clerk a statement asking the court to defer ADR consideration until a later date (ADR Deferral Notice). The statement shall be signed by both counsel and the party and shall state that counsel and the party have reviewed the ADR videotape. If participation in the ADR program is deferred in a paternity or annulment action, the case shall proceed to mediation within 90 days of the filing of an answer unless good cause is shown why mediation should not occur. If participation in the ADR program is deferred in other cases, the court and parties are required to address the usefulness of mediation or arbitration in resolving the case no later than the first pretrial conference.
- All parties file with the clerk a written agreement to submit the case to nonbinding arbitration (ADR Deferral Notice).
- All parties file with the clerk a written agreement to submit the case to binding arbitration (ADR Deferral Notice)..
- The court on its own motion, may refer the action or any issues therein to the ADR program.
- The court upon its own motion, or for good cause shown upon motion by a party, may order that an action that has been referred to the ADR program be withdrawn from the ADR program and be restored to the trial calendar.
- A party, believing that continuing in mediation is no longer productive, may terminate participation and shall notify the other party and the court.
- Any time the parties determine to use mediation or arbitration in the resolution of the case, the plaintiff shall notify the court and specify the expected date for completion of the ADR process (ADR Referral Notice).
- Upon conclusion of an ADR process, the plaintiff shall notify the court of the outcome of the ADR process on a form provided by the court (ADR Dispositional Notice).
- The parties may select an ADR provider from the Court-Annexed ADR Provider Roster.
- If the parties require a pro bono ADR provider, they should contact the Director of ADR Programs.
- The cost of the ADR services is paid for by the disputants. (Typically, parties split the fees equally or agree on a fair division according to their income). Providers set their professional rate. The maximum hourly fee charged by individual mediators and arbitrators is indicated in the Court Roster. If the parties are impecunious, they may contact the ADR Director to see if they can be assigned a pro bono mediator.
- Discovery (the pre-trial exchange of information between the parties) may proceed during the mediation process. In other words, parties may continue to prepare for trial while attempting to settle their case using mediation. In arbitration, the parties may conduct discovery once they have met and established what the limits will be.
- Parties may opt out of mediation at anytime. However, if a party unilaterally terminates a non-binding arbitration procedure after the hearing has begun, that party will be responsible for all of the ADR provider's fees, and possibly reasonable attorney's fees for the other side. A mediator may also terminate the process if he/she determines that the parties are unable to participate meaningfully, or that a reasonable agreement is unlikely to be achieved.
- If parties are unable to reach an agreement, the court is notified and the case is returned back to litigation. When an arbitration decision is rendered, the parties may refuse the decision and resume litigation (ADR Dispositional Notice).
- The ADR program compiles a list of qualified mediators and arbitrators who work throughout the state. The roster includes a biographical sketch about each provider, the location and description of the facility where services will occur, areas of professional expertise, fees, and the judicial district(s) where the provider will serve.
- When disputing parties elect to use mediation or arbitration, they may simply consult the roster and retain the professional of their choice to provide services.