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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

ADR Policy for the Minnesota Courts

Past, Present and Future

An update on pending revisions to Rule 114

The Minnesota Supreme Court ADR Ethics Board has been working since late 2012 to draft proposed updates to Rule 114 and is close to submitting its work to the Minnesota Supreme Court for consideration.

Rule 114, Minnesota General Rules of Practice for the District Courts, codified the policy and practice of Alternative Dispute Resolution (ADR) in Minnesota courts in 1993. At the time, the state’s courts were viewed nationally as among the leaders of the ADR-in-the-courts movement. (Other forums, including community-based mediation centers and labor arbitrators/mediators, have earlier roots.) What was once novel to most lawyers and judges—formally considering how to reach terms of resolution short of trial—has become accepted practice in most areas of family and civil courts.

In the past 20 years, lawyers, judges and ADR neutrals have grown increasingly sophisticated and creative in tailoring ADR for specific uses. The result is like a house with rooms that have been added on and remodeled by multiple designers. Some of the rooms/rules work well as initially designed. Other procedures are more modern than the traditional structure provided by Rule 114. Others are confusing, misunderstood, or simply do not fit within Rule 114 as it currently exists.

The Minnesota Supreme Court ADR Ethics Board is responsible for: 1) Rule 114 ethics complaint management; 2) Rule 114 ethics education and outreach; and 3) Rule 114 improvement.1 The board comprises 15 volunteer members, six judicial members, and nine others working in the ADR field. (See roster at www.mncourts.gov/Help-Topics/AlternativeDisputeResolution.aspx.)
The board has been working since late 2012 to draft proposed updates to Rule 114 and is close to submitting its work to the Minnesota Supreme Court for consideration.

This article includes a brief history of ADR in Minnesota courts, before and after Rule 114 adoption, to set the context and explain the need for revisions. It then outlines the challenges to updating Rule 114—including key policy questions—and concludes with the areas in which revisions are expected.

Early ADR in Minnesota courts

The Minnesota family bench and bar were pioneers for family ADR well before formal court rules were adopted. In 1978, the 2nd and 4th Judicial Districts Family Court Divisions Custody Resolution Specialists in Family Court Services was formed. Family Court Services had social service providers on staff who fulfilled the role of mediator for issues between parents. The success of these early programs, in terms of the parties’ satisfaction and increased court efficiency, led to the adoption of Rule 310 of the General Rules of Practice for the District Courts in the early 1980s. Rule 310, which applies to family law matters, still exists. The rule currently spells out the exceptions for ADR in family courts, guidelines for use of ADR when domestic abuse is claimed by a party or the court finds probable cause that abuse of a party or child of a party is present, and the process for ADR in post-decree matters.

Formalization

The use of ADR continued to increase in Minnesota, mostly in family court, until 1994, when Rule 114 was promulgated for civil courts. In 1997, Rule 114 was amended to merge the family and civil ADR practices into one rule (except for what remains of Rule 310 as described above). The Rule 114 Code of Ethics was also adopted that year. Since 1997, Rule 114 has applied to all forms of the ADR process and to the neutrals who perform these services in Minnesota civil and family courts. Thus, the procedural rules that apply to a personal injury mediator also apply to an employment arbitrator and a family parenting time expediter. All-ADR inclusivity provided consistency and clarity. However, as ADR has evolved, Rule 114 has functioned fairly well for some arenas and not so well in others, leaving some to wonder why updates are necessary and others to wonder why it is taking so long to promulgate revisions.

Maturation

Rule 114 has always contained a provision that allowed parties to, by agreement, “create an ADR process” under “Other,” pursuant to Rule 114.02(a)(10). Over the years, lawyers and the courts were creative in adapting ADR to meet their needs. This was especially true in family courts, where creative hybrid alternatives for families were developed to assist pro se parties, manage high-conflict parents, encourage resolution efforts early in the legal process, and promote efficient case management. For example, the Parenting Time Expeditor (PTE) Statute (Minn. Stat. §518.1751) was introduced in 2005. PTEs assist parents in resolving post-decree parenting issues consistent with an existing order. If the parties are not able to work out their differences, the PTE will decide the issue(s), and this decision may be appealed to the court. The use of Parenting Consultants (PCs),2 a designation with a broader scope than PTE that must be agreed to by the parties, increased. Many family court jurisdictions also started managing cases differently. They adapted early neutral evaluation (ENE) into new process options for family court such as Social ENE (SENE) and Financial ENE (FENE). In contrast to the explosion of new processes seen in family ADR, civil ADR has honed existing ADR processes.

Slow pace of change

It has been challenging for the ADR Ethics Board to finalize its proposed revisions for both practical and policy reasons. These include:

  • The same 15 volunteers are responsible for handling ethics complaints and developing the rule revisions. The number of ethics complaints has increased from 5 or fewer complaints per year to as many as 5 each month. While two-thirds to three-fourths of the actions upon which complaints are based are ultimately found not to have been ethical violations, the board must spend time reviewing the submissions. It is difficult to keep up momentum on proposing rule revisions while managing the complaints.
  • Given the all-ADR-inclusive nature, any change to address an issue in one area might have unintended impacts on other areas in which the bench, bar, and neutrals are satisfied with the status quo or may even perceive a negative impact from a proposed change.
  • The ADR Ethics Board is committed to discussing draft updates and soliciting feedback so that the proposed revisions are thoughtful and encompass as many areas of practice as possible. Note that these revisions are proposed to the Minnesota Supreme Court, and the Court decides what happens next. The ADR Ethics Board circulated a draft in June to a range of stakeholders and requested comments. It is currently in the process of reviewing these comments and making final revisions to the rule prior to submission to the Supreme Court.
  • Parties enter and engage in ADR differently, depending on the nature of the disputes. The bar to becoming a Rule 114 qualified neutral is low, and quality control is done primarily via the marketplace. In civil ADR, some would argue that this works because there are repeat users of the processes, such as lawyers and insurance adjusters who understand the ADR processes and the role of neutrals. Given the increasing number of pro se litigants in family courts, this system is not as effective. The litigants frequently do not understand the various processes and cannot fulfill the same quality control function.
Preview of Rule 114 updates

While the specific language is not yet finalized, you can expect to see revisions in the following areas:

  • Codification of new ADR processes for family law cases. As noted above, Rule 114.02 currently has nine enumerated ADR process options and a tenth labeled “other” which specifically states that “[p]arties may by agreement create an ADR process.” Over the past several years, the number of hybrid family law ADR processes routinely used by parties has increased. The board’s proposed update is to explicitly enumerate the most commonly used of these, including SENE (social early neutral evaluation) and FENE (financial early neutral evaluation); moderated settlement conference (may be expanded to civil); parenting consulting (PC); and, parenting time expediting (PTE). The ADR Ethics Board is proposing that the court add a roster for PTEs and one for PCs to the existing rosters of Civil Mediation/Hybrid, Civil Adjudicative/Evaluative, Family Mediation (currently Family Facilitative/Hybrid), and Family Evaluative/Hybrid. Doing so will provide more consistent definition to the processes and provide parties with more information as to what to expect from the neutral.
  • Clarification that individuals, but not organizations, may apply to be placed on the court-maintained neutral rosters. The exception to this new rule would be for Community Dispute Resolution Programs, as defined in Minnesota Statutes §494. This change will be helpful to the board in managing ethics complaints and will close a loophole that allowed people who were not eligible for a Rule 114 roster to form an organization to list on the roster.
  • Requirement of a written agreement for ADR services and all neutrals to provide written statement of qualifications. The Civil Mediation Act, Minn. Stat. §§572.33, defines an “agreement to mediate,” which is required for the evidentiary privileges and protections in Minn. Stat. §595.02. The ADR Ethics Board is proposing that a signed, written agreement be required for all ADR services in order to provide parties with greater clarity about the ADR process and their rights and obligations as part of the process.
  • Training requirements expanded. In addition to proposing qualifications and training requirements for the new ADR rosters, the ADR Ethics Board is also proposing new requirements for “lead” trainers of all ADR processes. The board is also proposing a “grandparenting” provision for neutrals who are already practicing in the proposed new roster areas.
  • Clarifications about mediation agreements. The proposed rule revisions are likely to clarify what role the mediator may play in working with the parties to memorialize their agreements and when a family mediation agreement becomes “binding.” Given the number of pro se parties, particularly in family cases, the board seeks to balance concerns around the neutral inappropriately giving legal advice and protecting parties from uninformed or coerced decisions on the one hand, and the desire of parties to be able to formalize their agreements in a cost-effective manner.

Striking the right balance is particularly challenging for two reasons. First, how a mediation agreement is currently viewed by a trial judge varies across jurisdictions and even within jurisdictions. This lack of uniformity can be traced in part to the fact that mediation agreements are not mentioned in Minn. Stat. §595.02, Testimony of Witnesses. The statutory provisions make it clear that “[a] person cannot be examined as to any communication or document… made or used in the course of or because of mediation pursuant to an agreement to mediate,” Subdivision 1(m), and that the mediator is not “competent to testify in any subsequent civil proceeding or administrative hearing, as to any statement, conduct, decision, or ruling at or in conjunction with the prior proceeding” [subject to three exceptions related to misconduct or criminal statements or conduct]. (Subdivision 1a Alternative Dispute Resolution Privilege.) Since mediation agreements are not specifically mentioned, trial judges have varied in their interpretations.

Some judges do not accept mediation agreements unless they have been converted into legally binding documents; others will accept mediation agreements into evidence and decide how much weight to afford them given the circumstances (including whether lawyers were involved); and others will accept them as attachments to self-help dissolution of marriage forms. Those who believe the court should accept and enforce mediation agreements believe that since a mediation agreement represents the self-determined decisions of the parties, then it follows that the parties should be able to present that agreement to the court. They feel mediation is not providing maximum benefit if the parties need to translate their agreements into a legal document. Those who believe the court should not automatically accept and enforce mediation agreements absent a formal, legally drafted document, question whether self-determination occurs in every situation. They believe that the court should be allowed to inquire to satisfy concerns about the possibility of coercion of one party by the other, or from a mediator intent on obtaining a settlement. Finally, there are concerns raised on both sides regarding time for parties to reconsider their decisions in a mediation. Some worry that one party might change his/her mind if the agreement is not truly final; others believe that parties should have the opportunity to carefully consider an agreement outside of the mediation before it becomes final.

The second challenge relates to the role of the mediator in memorializing the parties’ agreement. The fact that Rule 114 not only covers many different ADR processes, but also many different contexts and styles of mediation, adds to the challenge. It is fairly common in civil cases for a mediator or a participating attorney to write up the parties’ agreements during or soon after a mediation. The Civil Mediation Act, Minn. Stat. §572.35, includes specific requirements for a mediated settlement agreement to be binding. Based on these requirements, the agreement must contain a provision that it is binding and that parties were advised in writing that “(a) the mediator has no duty to protect their interests or provide them with information about their legal rights; (b) signing a mediated settlement agreement may adversely affect their legal rights; and (c) they should consult an attorney before signing a mediated settlement agreement if they are uncertain of their rights.” Thus, even if parties are unrepresented, the court can be fairly confident that the parties understood the implications of their actions.

In family cases, there are no similar requirements. It is important to note that the American Bar Association Section of Dispute Resolution adopted a resolution on the Unauthorized Practice of Law which contains the following clear policy statement: “The preparation of a memorandum of understanding or settlement agreement by a mediator, incorporating the terms of settlement specified by the parties, does not constitute the practice of law.”3 Nonetheless, this is an area that is still the subject of great debate. The board has not yet made its final determination on its proposal to address both of these challenges.

  • ADR Ethics Code & ADR ethics complaint process modifications. The Rule 114 Code of Ethics currently is an appendix to the rule. The proposal will provide rule numbers for the Code of Ethics and Enforcement Procedure to make it easier to reference. In addition, revisions will update the complaint process and codify needed procedural revisions identified by the board’s experience handling filed complaints and changes in practice. For example, the rule currently requires some communications to be sent by certified mail, and updates will be consistent with 21st century communications.
Conclusion

It is amazing to consider that the rule governing court-connected ADR in Minnesota is not even 25 years old. Its impact on court processes has been immense and will likely continue to be. Watch for further updates from the Minnesota Supreme Court and ADR Ethics Board as the proposals are finalized.

 


AIMEE GOURLAY is the executive director of the Mediation Center and a senior fellow of the Dispute Resolution Institute at Mitchell Hamline School of Law. She has served as a consultant to the Supreme Court ADR Ethics Board since 2005.

SHARON PRESS is a professor at Mitchell Hamline School of Law and director of the Dispute Resolution Institute. She has been advising the ADR Ethics Board in its current rule revision process.


Notes

1 Minnesota Supreme Court Order dated November 8, 2007.

2 All other states who have “PCs” call them Parenting Coordinators rather than Parenting Consultants, but it is the same process.

3 ABA Section of Dispute Resolution, “Resolution on Mediation and the Unauthorized Practice of Law” (2/2/2002) http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/resolution2002.authcheckdam.pdf

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