Court-ordered Mediation of Civil Cases
| Publication year | 1990 |
| Pages | 1057 |
| Citation | Vol. 19 No. 6 Pg. 1057 |
1990, June, Pg. 1057. Court-Ordered Mediation Of Civil Cases
Effective alternative dispute resolution ("ADR") can accomplish the following goals: (1) alleviate pressures on the judiciary due to overcrowded dockets and limited resources; and (2) assist attorneys and litigants in resolving disputes in a timely, less stressful, more satisfactory and more cost-effective manner. However, these goals cannot be achieved unless the participants familiarize themselves with the available options and are willing to be flexible and creative to fit the process to the needs of their particular case.
ADR procedures can be divided into two general categories. The first utilizes a hearing format and includes arbitration, summary jury trial and mini-trial. The second includes specialized negotiation procedures, such as mediation and early neutral evaluation. Procedures such as "med-arb," which utilize both mediation and arbitration, are a combination of the two categories.(fn1) An attorney whose case is referred to ADR has to make several important choices to achieve the maximum result. This article discusses the factors to consider when choosing mediation to satisfy a court order referring a case to ADR. Its emphasis is on the Denver District Court; however, the information included is appropriate for any Colorado attorney facing court-ordered ADR.
In 1989, the Denver District Court increasingly referred civil cases to mediation pursuant to a standard order which required the parties to attend either a mediation session or some other form of ADR selected by the parties.(fn2) In the near future, the Denver District Court intends to implement a mandatory mediation order for the majority of its civil cases. The proposed order specifically refers the parties to mediation but allows them to select another form of ADR.
A review of Colorado civil cases referred to mediation in 1989 indicates that litigants generally (1) attended a mediation session conducted by the statutorily created Office of Dispute Resolution of the Colorado Judicial Department or (2) scheduled a settlement conference with either a sitting judge or a former judge. Without further study, there is no indication whether counsel for these cases considered other methods before proceeding.
Not all disputes are appropriate for mediation. Cases may be unsuitable for a variety of reasons. These include (1) that the parties refuse to negotiate in good faith or (2) that one or both parties should not enter into a give-and-take negotiation regarding this dispute. It is incumbent on the mediator and attorneys to recognize quickly whether the dispute is appropriate for mediation and, if not, to terminate the mediation process immediately.
The Denver District Court's new standard order, if implemented as proposed, will (1) be issued soon after the case is filed, (2) require the plaintiff's attorney to set up a mediation, and (3) require the parties to complete mediation within 180 days. As...
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