Alternative Dispute Resolution in Minnesota
All civil lawsuits involving personal injury and wrongful death in Minnesota are controlled by the Minnesota Rules of Civil Procedure. Each party to the lawsuit must follow those rules, which set out, among other things, a party’s right to take depositions, the manner in which interrogatories and other “discovery” requests are served upon parties, the plaintiff’s obligation to submit to an independent medical examination (IME) (also known as an adverse medical examination (AME) and the requirement of ADR (Alternative Dispute Resolution).
Most personal injury and wrongful death civil lawsuits are required to go through some type of ADR process in Minnesota. That can include arbitration or mediation. The Court may order the type of ADR that must be used in each individual case, but, more often the decision is left to the parties. Each process is discussed below.
Arbitration: Binding and Non-Binding
Binding Arbitration is a substitute for a trial. The parties select an arbitrator who is usually an experienced personal injury lawyer and wrongful death lawyer (sometimes the parties agree that there should be a panel of three arbitrators). The arbitration is usually held in the arbitrator’s office. The parties appear before the arbitrator and submit most of the evidence in written form, such as medical records, medical bills, police reports, etc. The parties also have the right to present testimony to the arbitrator. Most of the time the plaintiff and one of two other witnesses may testify. Anyone who testifies is placed under oath and is questioned in a manner consistent with that questioning that would occur in Court. They are also subject to cross-examination.
After the arbitrator hears the case the arbitrator usually takes the matter under advisement and issues a decision later on (usually within 30 days). Since a binding arbitration takes the place of a trial, the arbitrator’s decision is final.
The Court cannot order parties to a binding arbitration in personal injury and wrongful death cases. Since the parties are giving up their right to go to trial, all parties must agree before a case goes through the binding arbitration process.
Non-Binding Arbitration is very similar to the binding arbitration described above, except that the parties are not bound by the outcome. For example, if a case went through non-binding arbitration and the plaintiff prevailed, the defendant can ask that the arbitration be put aside and that the case proceed on to trial.
The procedure used for non-binding arbitrations in personal injury and wrongful death cases is very similar to the procedure used in binding arbitrations. Most of the case is presented to the arbitrator by way of written documentation. The arbitrator then renders a decision within 30 days. Each party then has a certain amount of time in which to ask that the arbitration award be set aside.
As you might expect, non-binding arbitrations have limited value. Since they are not binding in nature, they are used primarily as a means to educate the parties regarding the strengths and weaknesses of the case. In other words, it gives the parties a chance to see what an outside, neutral person thinks about the case, which in turn may prompt the parties to enter into realistic settlement negotiations.
The Court does have the power to order parties to go to non-binding arbitration. Furthermore, the parties can agree to do so.
Mediation is a settlement tool. It is a chance for the parties in personal injury and wrongful death cases to get together with some outside, neutral individual to discuss settlement of the case. The mediator is usually an experienced personal injury and wrongful death lawyer. The mediation is usually held in the mediator’s office. The parties usually submit some written material to the mediator prior to the mediation in order to give the mediator some background information. However, since the mediator is not going to decide the case, the parties do not usually submit the same type of information they would submit at either a trial or arbitration. After a brief meeting to discuss the goal of the mediation, the mediator usually splits the parties up and then moves back and forth among the parties in an effort to settle the case. During those sessions, the mediator will discuss the strength and weaknesses of the positions taken by each party. It is the hope that such a process will help the parties reanalyze the case and move towards settlement.
If the mediation is successful, the parties will settle the case and there will be no need to continue on to trial. If the mediation is unsuccessful, the parties continue on the path towards trial. All discussions held during the course of a mediation are confidential and cannot be used by or against any party later on in the case.
The Court has the power to order parties to mediation in most personal injury and wrongful death cases in Minnesota. The parties also have the right to agree to submit the case to mediation. Usually the parties select the identity of the mediator.