Most everyone is aware of the court systems and their role in settling legal disputes. Not everyone, however, is aware than an alternative method, known as Dispute Resolution (DR), exists. The use of DR procedures is becoming more frequent as more judges, attorneys, and the public experience the availability and benefits of the Dispute Resolution system. Additional information about DR procedures is available from attorneys and the State Bar of Montana.
Legal Basis for Dispute Resolution
Some state and federal laws require the use of DR procedures, whiles others encourage its use. The use of DR procedures assist in reducing the courts' caseloads. Below are the five most common forms of DR procedures.
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, determine the facts, and then make a decision. Before arbitration states, the parties may decide whether the arbitration is made, then the arbitrators' award is enforceable, similar to a court judgement. If the parties agree to a non-binding arbitration, then the arbitrators' award only provides additional information for use in further settlement negotiations. Non-binding arbitration is found in state laws, local rules referencing the state laws, and local court rules. The preferences of the parties and the arbitrator(s) 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 any 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 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 (e.g., families, business associates, landlords and tenants, etc.). The mediator makes sure that all parties have an equal chance to be heard. Parties are encourage to express emotion and frustrations that may be interfering with the negotiations. The mediator helps to identify the issues and explore possible solutions. Mediation is the least formal DR procedure, and in many cases the parties' lawyers do not attend due to the focus 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 mediation depends upon 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 or may require several sessions.
The mini-trial is a flexible procedure used when parties want to resolve an issue protecting their relationship or future business interests. Most often, mini-trials involve corporations or governmental agencies. 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: identify key issues and take immediate corrective action. This DR procedure often results in creative and practical solutions. Large corporations or governmental agencies prefer the confidentiality and efficiency of a mini-trial.
In a settlement conference, a case is presented to an impartial panel or judge. Each party's attorney presents a case summary to the panel or judge. The panel or judge are allowed to ask questions, after which the parties' attorneys make brief closing statements. Afterwords, 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 hears 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 procedure often leads to settlement or more productive negotiations.
Summary Jury Trial
A Summary Jury Trial is utilized 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, similar to a standard jury trial with the exception that some rules are formal while others are slightly more relaxed. The judge makes rules about the admissibility of evidence and the conduct of the procedure. The jury's decision in a summary jury trial is advisory only, however the jury is not told this until after a decision has been made, and the parties and attorneys are able to discuss the decision with the jurors directly. This procedure lets the parties experience a formal court hearing, which allows them to see how a jury will view their case.
Judge Pro Tempore
Montana law provides a procedure for the use of a Judge Pro Tempore, or "Judge Pro Tem." In any lawsuit that 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 when presented to an elected District Judge.
What Will the DR Cost?
Mediators, arbitrators and other practitioners in a DR proceeding will charge varying fees for their services. They may also charge a flat fee for the entire procedure. Parties should consult in advance with the person they select so that the fee arrangement is fully understood by both 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 District Court will have more information available about DR proceedings and costs.
Further information concerning Dispute Resolution and Dispute Resolution practitioners can be obtained from local bar associations, clerks of court and public libraries.
This information is intended to inform you about Montana law generally, it is not intended as advice. You are encouraged to speak to an attorney regarding the specifics of your situation.