M E M O
To: Joint Procedure Committee
From: Gerhard Raedeke
Re: Joint Dispute Resolution Study Committee Recommendations
The Supreme Court established a Joint Dispute Resolution Study Committee on October 11, 1995, to study alternative dispute resolution. The Committee of five attorneys and five trial judges met seven times. On June 30, 1998, the Committee submitted a final report to the Supreme Court. The report was referred to the Joint Procedure Committee for further study.
The Joint Dispute Resolution Study Committee is recommending changes to Rule 16, N.D.R.Civ.P., and the adoption of two new North Dakota Rules of Court to promote and facilitate the use of ADR processes. Their report indicates attitudes of attorneys, judges, and legislators are mainly positive towards the use of ADR in North Dakota. However, a lack of information about ADR processes and providers, and a lack of training standards for ADR practitioners, has created a barrier to the use of ADR in North Dakota.
The Committee rejected mandatory court-annexed ADR. The Committee reasoned compulsory participation is inconsistent with the voluntary nature of mediation. The parties have to want mediation in order for it to work. Also, if mediation were mandated, the courts would have an obligation to insure access to fully funded quality programs.
Instead of mandating ADR processes, the Committee opted for voluntary court-annexed ADR. This mixed approach depends on the lawyers' obligation to inform their clients about all the options for resolving a case, including ADR. Voluntary court-annexed ADR also requires the courts to provide information about ADR providers and to address ADR as a case management tool in scheduling.
The new provisions implement case management techniques to encourage consideration of ADR in the early stages of litigation and to encourage attorneys and courts to educate the parties about ADR. The proposals also establish qualifications for neutrals and provide for a court maintained roster of private neutrals.
The proposed amendment to Rule 16 expressly provides for discussion during a pretrial conference of the desirability of ADR processes. Various types of ADR processes are expressly listed in the rule. The proposal also provides for a mandatory scheduling order to impose deadlines including the timing and procedure of any alternative dispute resolution process selected.
The Joint Procedure Committee has already twice considered and rejected the adoption of a requirement for a mandatory scheduling order as proposed. Minutes of the Joint Procedure Comm. 19-20 (April 28-29, 1994). The Committee thought scheduling orders are not needed in most cases. In cases in which they are needed, attorneys can request a scheduling conference and order under the present rules.
The Joint Dispute Resolution Study Committee is also proposing the adoption of a case management rule in the North Dakota Rules of Court. After an action is filed, the rule provides for a compulsory meeting of the parties to discuss case management issues and ADR processes. Within 60 days after the action is filed, each party is required to submit an informational statement. If a party believes ADR is inappropriate, the informational statement must contain reasons supporting that conclusion. Finally, the rule provides for a court to enter its scheduling order no sooner than sixty days and no longer than 90 days after an action has been filed.
The explanatory note to the proposed case management rule identifies and defines various ADR processes, and also defines a "neutral." The rule and explanatory note are patterned after Rules 111 and 114, Minn. Gen. R. Prac.
Previously, the Committee considered and rejected the idea of adopting those provisions from Minnesota. The Committee concluded Minnesota's procedure creates extra work, and the North Dakota judiciary does not have the necessary staff to implement extra case processing procedures.
Finally, the Joint Dispute Resolution Study Committee is proposing adoption of an alternative dispute resolution rule. The proposal provides the court administrator is to provide the parties with information about ADR processes and neutrals who provide ADR services. The proposal provides the State Court Administrator is to maintain a roster of neutrals for civil matters and a roster of neutrals for family law neutrals. The rosters are to be further divided according to different types of ADR processes.
Finally, the rule contains training requirements which must be met for a neutral to be listed on a roster. However, the parties may select a neutral who has not had the requisite training for listing on the roster.
Does the Committee want to recommend adoption of the proposals submitted by the Joint Dispute Resolution Study Committee?