ALTERNATIVE DISPUTE RESOLUTION
“ADR”
is an abbreviation for Alternative Dispute Resolution.
Courts resolve disputes in which lawsuits have been filed.
This process is called “litigation”.
Litigation can be very expensive and take a long time to complete.
To better serve the public, many courts have introduced
alternatives to litigation. Two
alternatives to litigation are settlement conferences and mediation; there
are also other forms and processes, such as arbitration, for resolving
disputes and managing conflict between people.
ADR
involves people more directly in the resolution of their legal disputes
than litigation. When people
have more of a say in what happens to the, they are usually more satisfied
with the process and more likely to abide by the terms of the agreement
they made. Studies show that
ADR significantly decreases the time it takes to resolve cases and costs
to both litigants and courts, and increases litigant satisfaction.
The
First Judicial District Court offers settlement conferences as an
alternative to litigation. A
settlement conference occurs when a case is already in litigation.
Faster settlement of the case without going to trial is the primary
goal. Usually, but not always,
both parties are represented by attorneys.
You do not have to be represented by an attorney to be able to use
the ADR process.
Please refer to If You Don’t Have A Lawyer button for further information.
FREQUENTLY ASKED QUESTIONS
about
the Court’s
Alternative
Dispute Resolution
(ADR)
Program
What is “ADR”?
“ADR”
is an abbreviation for Alternative Dispute Resolution.
Courts resolve disputes in which lawsuits have been
filed. This process is called
“litigation”. Litigation
can be very expensive and take a long time to complete.
To better serve the public, many courts have introduced alternatives
to litigation. Some
alternatives to litigation are settlement conferences and mediation; there
are also other forms and processes, such as arbitration, for resolving
disputes and managing conflict between people.
What is
a settlement conference?
A
settlement conference occurs when a case is already in litigation, that
is, when a lawsuit has already been filed.
All the parties and their attorneys, if any, sit down with a
neutral third party, the settlement facilitator, to try to work out a
settlement on their own. Faster settlement of the case without the time
and expense of going to trial is the primary goal.
What is a settlement facilitator?
The
settlement facilitator is a neutral third party whose only job is to help
the parties resolve their differences. The settlement facilitator is
expected to be able to help each party evaluate their own and the other
party’s cases; this is why the Court’s ADR Program requires that all
the settlement facilitators on its list be licensed attorneys with at
least 5 years of subject matter experience who also have training and
experience in mediation techniques. The
settlement facilitator is not on anyone’s “side”.
Settlement facilitators do not represent or give legal
advice to either party. Settlement
facilitators do not make decisions for you. The settlement facilitator can
be very active in suggesting ways to resolve the lawsuit and in persuading
each party to compromise for settlement.
Does the settlement facilitator have to be an attorney?
If
the parties choose the settlement facilitator, he or she can be anyone the
parties believe can help them come to an agreement. It doesn’t have to
be a lawyer, and it doesn’t have to be someone on the Court’s list.
Only
attorneys who have mediation training and have met the Court’s standards
are on the Court’s list.
Only
settlement facilitators who are on the Court’s list are obligated to
accept the Court’s fee schedule. If
the parties select (stipulate to) a settlement facilitator who is not on
the Court’s list, they will make their own fee arrangements with that
person.
WHAT’S
THE DIFFERENCE BETWEEN “MEDIATION” AND “SETTLEMENT CONFERENCES”?
Settlement
conferences and mediation are both processes which use an impartial third
party – the “neutral” - to facilitate discussion between the
parties, but the role of the neutral in each process is somewhat
different.
“Settlement
facilitators” conduct settlement conferences.
“Mediators”
conduct mediations.
Neutrals,
whether they are settlement facilitators or mediators, never represent any
party in any case in which they are the facilitator, do not decide how the
case will be resolved, and they should never give legal advice to either
party.
Settlement
conferences occur when a lawsuit has already been filed.
They are an attempt to settle the case without having the judge
decide it. Settlement
facilitators, because of their legal training, can help each party
evaluate the strengths and weaknesses of their own and the other side’s
case. They may take a more
active role than mediators in encouraging both sides to come up with
possible solutions.
In
contrast, mediation may
occur before a lawsuit is filed; it is often used in an attempt to avoid
litigation. It may also be
used in cases that have already been filed.
Mediations are conducted by trained, experienced mediators who may
also, but are not required to, be attorneys.
The mediator’s role is to help the parties talk to each other to
help them resolve their dispute. A
non-lawyer mediator is not qualified to, and does
not offer evaluation of the relative strengths and weaknesses of each
party’s legal case. Mediation is often preferred where the parties have
an ongoing relationship that has to be preserved, for example, between
divorcing parents, and they also have a dispute that has to be resolved,
for example, child custody or timeshare arrangements.
Mediation can also be highly effective in other civil cases such as
probate cases and some business disputes.
Which program you choose (ADR or mediation/Family Court Services) will
depend on what your goals and needs are.
WHAT KIND OF ADR PROGRAMS DOES THE COURT OFFER?
Through
the Family
Court Services& Mediation Program, the Court
provides mediation services for
child custody issues.
The
ADR Program offered through Court Constituent Services offers settlement
facilitation.
What
kind of cases can be referred to settlement conferences?
Only
cases in which a lawsuit has been filed can be referred to settlement
conferences. Cases identified
by the Court as CV (civil), DM (domestic matters), or PB (probate), are
eligible for referral to a settlement conference.
Look
at the case number to see what kind of case it is.
For example, case number D-0101-DM-2050-12345 would be a District
Court (D) case, filed in
How
does my case get referred to a settlement conference?
Any
party (you or the other side) can file a Request for Referral to
Settlement Conference. Judges
may also refer cases to settlement conferences, with or without the
request of the parties. Follow
the directions in this page “How
Request A Settlement Conference”.
You can get all
the forms from the Court’s website: www.firstdistrictcourt.com
or from the
How
do I file a request for referral?
Follow
the directions in: “How
To Request A Settlement Conference”.
How
is the settlement facilitator chosen?
The
parties may choose the settlement facilitator, if you can agree on one
person. If you agree on a
settlement facilitator, you should file a Stipulated Request for Referral
to Settlement Conference using the Court’s form.
If
the parties can’t agree on a settlement facilitator, the ADR Program
will assign someone from the court’s list of lawyers who are qualified
settlement facilitators. The
settlement facilitator’s areas of expertise is matched with the type of
case to make sure the settlement facilitator has the experience and
background to understand the legal issues in the case and help the parties
come to an agreement.
What if
the settlement facilitator has a conflict, or one of the parties doesn’t
want him/her to serve for any reason?
Any
party or the settlement facilitator may file a Request
for Replacement of Settlement Facilitator.
Use
the Court’s form! No explanation for the request needs to be given.
The Court will appoint a different settlement facilitator.
If both parties agree on a replacement settlement facilitator, they
should file a Stipulated Request for Replacement
of Settlement Facilitator.
How
much will it cost?
If
the Court assigns the settlement facilitator, the fee schedule set by the
Court is $500 for 4 hours. If
you haven’t reached a settlement at the end of 4 hours and want to
continue, the fee is $150 per hour for the next 4 hours.
If you need more time than that, the settlement facilitator is paid
at the rate agreed to in writing by the parties and the settlement
facilitator before the conference begins.
If
the parties choose a settlement facilitator who is not on the Court’s
list, they can make their own payment arrangements with him or her, paying
more or less than the Court’s fee schedule provides.
Usually,
the settlement facilitator’s fee is split equally between the parties.
Sometimes, however, parties agree or the Court orders that one
party will pay more.
When do I have to pay?
You have to pay
the settlement facilitator for the first 4 hours before the settlement
conference starts, unless you have made other arrangements with the
settlement facilitator beforehand. If
you have made other arrangements, be sure you have those arrangements in
writing before you start.
What
if I can’t afford to pay my share?
You
can file a Motion for Free or
Reduced Cost Settlement Facilitation.
The Court will decide whether free or reduced-cost settlement
facilitation is appropriate, and will issue an order stating how much you
have to pay.
Who
will be at the settlement conference?
The
settlement facilitator, and all parties, their attorneys if they have any,
and any other persons who have authority to settle the case such as insurance
company representatives, finance or mortgage company representatives, or
guardians ad litem.
Where
will the settlement conference be held?
It
could be at the settlement facilitator’s office, or at the office of one
of the attorneys, or at the courthouse, or any other place that all
parties and the settlement facilitator agree on.
How
are the date and time for the settlement conference decided?
All
the people who are required to participate decide among themselves.
If they can’t come to an agreement, the settlement facilitator
decides.
What
happens during a settlement conference?
The
settlement conference is an informal proceeding.
That means that the rules are much more relaxed – basically,
anyone can say anything as long as they’re polite and non-threatening.
You’re there to try to figure out a way to resolve your case that
everyone can live with. The
settlement facilitator is a neutral third party whose job is to help
everyone have their say, and search for mutually agreeable solutions.
The settlement facilitator is not a judge, and will not make
decisions for you.
Each
settlement facilitator has his or her own style.
Sometimes all the parties will be in the same room during most of
the conference; sometimes they will start out together and then separate
into different rooms with the settlement facilitator going back and forth
between them; and occasionally they may never see each other and
communicate only through the settlement facilitator.
If you have strong feelings about either being together or being
separate, be sure to let the settlement facilitator know.
Will I be expected to actively participate in the discussion during
the settlement conference?
Yes.
This is your case, and you will be affected more than anyone else
by how it is resolved. If you
and your attorney decide that you’d rather not talk much, you can, but
no one, including your attorney, can finally decide for you if you are
satisfied with any particular resolution.
Do
I have to have an attorney to request a settlement conference?
No.
What
if I don’t want to go to a settlement conference?
If
the court orders it, it’s just like any other kind of court order:
you have to do it, or tell the court why you couldn’t or
wouldn’t and ask the court’s permission not to comply with the order. You must comply with the Referral Order – or any other Order – until
the judge tells you that you don’t have to.
If you refuse to follow the court’s order, and the judge thinks
you didn’t have a good reason for it, you may be liable for
“sanctions” for contempt of court.
That means the court can fine you or even put you in jail.
If
you have a good reason for not participating in a settlement conference,
you can file a Motion for
Excusal from Settlement Conference
in which you will tell the judge why you don’t want to participate.
The other parties will have an opportunity to respond to your
Motion. The judge may decide
whether to excuse you from participation based on what you and the other
parties said in your Motion and their response, or the judge may hold a
hearing to get more information. Just
because you file a Motion for Excusal from Settlement Conference doesn’t
mean the judge will grant it!
Do
I have to settle my case at the settlement conference?
No.
Not every case can be settled.
If an agreement cannot be reached, your case will proceed to trial
and the judge will decide it.
What happens if I don’t do the required evaluation of the
settlement facilitator?
Everyone
who participates in a settlement conference with a settlement facilitator
on the Court’s list is required to complete an evaluation of the
settlement facilitator, either on-line or by fax.
If your case settles and you haven’t completed the evaluation,
the judge may not issue a final order closing the case until the
evaluation is completed. If
your case does not settle and you don’t complete the evaluation, the
judge may have a hearing at which you can tell him/her why you didn’t;
the judge may impose sanctions.
What
if I have a complaint about the settlement facilitator’s conduct?
You should first address your concerns with the settlement facilitator in the hope that any misunderstandings can be resolved amicably. If you are not satisfied, you can file a complaint with the Court Constituent Services Division Director.
How
to request a
referral to settlement conference
1.
Let the Court know you want a settlement conference. If
you were referred to a settlement conference by a judge’s scheduling
order, you must still follow this procedure.
This procedure is also used to request a referral to foreclosure
mediation.
a.
Obtain
the proper forms:
get
them from the
If
you want the Court to assign a Settlement Facilitator from the Court’s
list:
Obtain a Request for Referral to Settlement Conference form.
Complete the form. Settlement
Facilitators on the Court’s list are attorneys with at least 5 years of
experience in the subject matter area who have mediation training and
experience.
If
you and the other party have agreed on a Settlement Facilitator (who may be, but is not
required to be, a person on the Court’s list)
and just need a Referral Order, obtain
a “Stipulated Request for Referral to Settlement Conference”.
Complete the form.
Then
make enough copies of the
Request for Referral to Settlement Conference for yourself, the judge, the
ADR Office, and all the parties. Make
2 sets of self-addressed, stamped envelopes
to provide copies of the Request and the Referral Order to all parties or
their attorneys.
b.
Then
file the Request in the Court
Clerk’s office. The
Clerk’s office will keep the original.
Ask the filing clerk to endorse (stamp) each of the copies.
If
you can’t go to the Courthouse in person, you can file by mail:
mail the original and copies to the Court Clerk’s Office, First
Judicial District Court,
c. Take another endorsed copy to the
d.
You must also provide copies of the Request you file to all
parties.
Use the other set of envelopes to mail the Request to all parties.
You must do this yourself; court employees will not mail copies of
the Request to the other parties for you.
2.
The ADR Office will assign a settlement
facilitator, and will generate a Referral Order, which will be
given to the judge’s assistant along with the envelopes.
3. The judge’s
assistant will get the Order signed by the judge and entered in the
court file, and then mail it to the Settlement
Facilitator and all parties using the envelopes provided by
the person who filed the Request.
An
Order of Referral to Settlement Conference is a court order and all
of its terms MUST be obeyed by every person to whom it applies!
DO NOT IGNORE ANY PART OF THE REFERRAL ORDER!
4. Each
party MUST contact the Settlement Facilitator within 10 days after entry of the
Order to schedule a Settlement Conference. Scheduling
of settlement conferences is NOT done by the ADR Office.
5. Each party must
provide the information described on the Settlement
Conference Information Sheet to
the Settlement Facilitator
no later than 5 business days before the date selected for the
Settlement Conference. Do
not return the Settlement Conference Information Sheet to the ADR Office.
Fill it out completely, and be as specific as you can about the issues.
The more information the Settlement Facilitator has, the better he
or she will be able to help you.
6. All the participants – parties and their attorneys - in the Settlement Conference except the
Settlement Facilitator must complete a short, anonymous, confidential, evaluation
(either on-line or by fax) of the Settlement Facilitator’s
performance within 5 business days after the Settlement Conference
concludes.
The
Settlement Facilitator will either get your email address and you will
receive a link to the evaluation form from Positively Neutral, or, if you
do not have email access, the Settlement Facilitator will give you a paper
form to be faxed to Positively Neutral.
The
Settlement Facilitator will receive notice by email that the evaluation
has been completed. If you do
not complete the evaluation, the Settlement Facilitator will note that
fact on the Certificate of Compliance (see 7 below), and your case may not
be closed until you complete the evaluation.
7. Within 5 business days after the
settlement conference, the Settlement
Facilitator will file a Certificate of Compliance with
the Court Clerk.
8. If any participant at any time
does not comply with any term of the
Order, the other participants should remind him/her of the terms of the
Order. If non-compliance
continues, any other participant may file a Notice
of Non-Compliance using the court’s form. The judge may take any
appropriate action in response to the Notice of Non-Compliance.
10. If your case is referred to settlement
conference and you do not feel that a settlement conference will be
helpful in resolving it, you may ask the Court’s permission not to have
a settlement conference by filing a Motion for Excusal from Settlement
Conference (get the form from this website or the
11. Settlement Facilitators on the Court’s list
are paid $500.00 for the first 4 hours, which may include up to an hour of
preparation time. If the case
does not settle during that time and the parties agree to continue, the
rate is $150.00 per hour for the next 4 hours.
If the case does not settle within that time, and the parties agree
to continue the settlement conference, the parties and the Settlement
Facilitator shall agree in writing upon an hourly rate to be paid to the
Settlement Facilitator.
Usually,
each party will be responsible for payment of one-half of the Settlement
Facilitator’s fee.
Payment
for the first 4 hours must be made prior to the beginning of the
settlement conference, unless other arrangements have been made in writing
with the Settlement Facilitator.
If
you use a settlement facilitator who is not on the Court’s list, the
Court’s fee schedule will not apply.
12. If you feel you cannot afford the cost of a settlement facilitator, you may file a Motion for Free or Reduced-Cost Settlement Facilitation. Follow the same filing procedures described above for filing a Request for Referral to Settlement Conference.
SETTLEMENT
CONFERENCES
Settlement
conferences are informal meetings between the parties and their attorneys
if any, to try to work out their differences without having to go to
trial.
Settlement
conferences are conducted by a settlement facilitator, who is a neutral
third party. In the First Judicial District Court, settlement
facilitators are lawyers with at least 5 years of experience in the
subject matter area and who have had at minimum a 40-hour mediation
training course and annual continuing mediation education.
The
settlement facilitator is expected to be able to help each party evaluate
their own and the other party’s cases, but does not represent or give
legal advice to either party. The settlement facilitator can be
very active in suggesting ways to resolve the case and in persuading each
party to compromise for settlement.
Any
party to any non-criminal (CV, DM, PB) case may request that the case be
referred for a settlement conference through the Court’s ADR Program.
You do not have to be represented by
an attorney to request a referral to settlement conference. All
the forms necessary for all steps of the ADR process are available on this
website (http://firstdistrictcourt.com)
and at the Court’s
Requests
for referral may be filed at any time after the Complaint or Petition is
filed, up to 60 days before a trial is scheduled.
Judges
may also refer a case to settlement conference without the request of a
party. The judge’s referral may be in a Scheduling Order, or it
may be a referral made in open court during a hearing.
After
a referral request is filed, a Referral Order is entered by the judge.
The Referral Order names the settlement facilitator to whom the case is
assigned, and sets out the procedures and timeframe for the settlement
conference.
If
a judge refers a case to settlement conference, and you don’t think a
settlement conference is appropriate, you can’t just ignore the order.
Instead, you must file a motion telling the judge why you shouldn’t have
to have a settlement conference. Again, use the court’s form.
Until the judge issues an order
rescinding the Referral Order, you MUST comply with the Referral Order.
The Referral Order is a court
order which must be obeyed by all parties!
Failure to abide by all the provisions of the Order may be considered
contempt of court, subject to appropriate sanctions.
A request for referral to settlement conference does not extend any deadlines for any pleadings required to be filed in the case, and does not vacate hearings or trial settings.
Frequently
Asked Questions
by
prospective
Settlement
Facilitators
I don’t have certificates from the CLEs I have taken.
What can I give you for documentation?
If the
CLE was in
I took a 40-hour mediation training, but it’s been some time ago
and I don’t have a certificate. Do
I have to do it again?
No.
Provide as much information as you have, such as the trainer’s
name, where you took the course, and when.
I haven’t taken a 40-hour mediation training, and I didn’t
participate in the Court’s ADR program as a volunteer.
Can I still get on the list?
Sorry,
not until you have completed a 40-hour
mediation training.
Is the 40-hour mediation training requirement cumulative, i.e., if I
have taken several different mediation trainings that add up to 40 hours,
does it count?
No.
The 40-hour mediation training is a basic course that covers the
process and techniques of mediation and provides role-playing practice
which may not be included in shorter courses.
Where can I get 40-hour
mediation training?
There are
a number of private providers, both in NM and out of state.
The
When do I have to enroll with Positively Neutral?
Immediately
after you receive notice of acceptance of your application.
Cases can be assigned to you as soon as we receive notice from
Positively Neutral that you have enrolled.
www.nm.positivelyneutral.com
Phone No. 914.293.0079.
My usual hourly rate is more than the Court’s fee schedule.
Can I still be on the Court’s list?
Of
course. You simply agree that,
for cases you receive by assignment from the Court (instead of by private
arrangement with the parties), you will accept the Court’s fee schedule.
You are free to charge any
rate for privately arranged cases in which you act as a settlement
facilitator.
How many cases can I expect to
be assigned once I am on the Court’s list?
There’s
no way to predict how many cases you might be assigned.
It will depend on the cases that are referred to ADR, the case
types, your areas of expertise, and how many other facilitators are on the
list for the case type.
I have been disciplined in
Yes,
unless you have been reinstated to good standing.
Who reviews applications?
The Court Constituent Services Division Director.