The ADR Ethics Board
What is ADR?
Alternative Dispute Resolution (ADR) processes are alternative methods to help people resolve legal problems before going to court. ADR involves an independent third person, called a "neutral" who tries to help resolve or narrow the areas of conflict. The use of ADR early in a case can result in the more efficient, cost-effective resolution of disputes with greater satisfaction to the parties. A great majority of the civil cases, including marital dissolutions (divorces), filed in Minnesota State courts are settled by using ADR. Minnesota courts recognize the effectiveness of ADR as a tool for settling disputes. In response, the courts provide parties and their attorneys, if parties are represented, with ADR information when they file a civil case. The parties must consider whether to use ADR to help resolve the dispute.
The following is a list of descriptions of the different types of ADR processes:
- Arbitration. A process in which each party in a dispute and their attorney present their position before a neutral third party, who makes a decision. If the parties stipulate in writing that the arbitration will be binding, then the proceedings will be conducted pursuant to the Uniform Arbitration Act (Minn. Stat. § 572.08 - .30). If the parties do not stipulate that the award is binding, the award is non-binding and will be conducted pursuant to Rule 114.09 .
- Consensual Special Magistrate. A process in which the parties present their positions to a neutral in the same manner as a civil lawsuit is presented to a judge. This process is binding and includes the right of appeal to the Minnesota Court of Appeals.
- Summary Jury Trial. A process in which each party and their attorney present a summary of their position before a panel of jurors. The number of jurors on the panel is six unless the parties agree otherwise. The panel may issue a non-binding advisory opinion regarding liability, damages, or both.
Investigation and Report Process
- Early Neutral Evaluation. (ENE). A process in which attorneys present the core of the dispute to a neutral evaluator in the presence of the parties. This occurs after the case is filed but before Discovery (the formal process of gathering information pertinent to the pending litigation, which may include written interrogatories, document production and depositions) is conducted. The neutral then gives an assessment of the strengths and weaknesses of the case. If settlement does not result, the neutral helps narrow the dispute and suggests guidelines for managing discovery.
- Non-Binding Advisory Opinion. A process in which the parties and their counsel present their position before one or more neutral(s). The neutral(s) then issue(s) a non-binding advisory opinion regarding liability, damages, or both.
- Neutral Fact-Finding. A process in which a neutral investigates and analyzes a factual dispute and issues findings. The findings are non-binding unless the parties agree to be bound by them.
- Mediation. A process in which a neutral third party facilitates communication between parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties.
- Mini-Trial. A process in which each party and their attorney present their opinion, either before a selected representative for each party (i.e., the president of a company), before a neutral third party, or both to develop a basis for settlement negotiations. A neutral may issue an advisory opinion regarding the merits of the case. The advisory opinion is not binding unless the parties agree that it is binding and enter into a written settlement agreement.
- Mediation-Arbitration. (Med-Arb). A hybrid of mediation and arbitration in which the parties initially mediate their disputes; but if they reach impasse, they arbitrate the deadlocked issues.
- Other. Parties may by agreement create an ADR process. They shall explain their process in the civil cover sheet that is filed with the court.
What is a neutral?
A "neutral" is an individual or organization who provides an ADR service, such as mediation or arbitration, as stated in Rule 114.02(b). Neutrals who are on the State Court Administrator's Rule 114 Neutral Roster are "qualified neutrals." Neutrals are professionals with a wide variety of backgrounds. Some are also attorneys, and they do not represent anyone for whom they are acting as a neutral.
I have been ordered to use ADR for my court case. Why?
Rule 114 of the Minnesota General Rules of Practice mandates that the court provides parties with information on ADR. Parties are required to discuss the use of ADR and address its use in their case in the informational statement that is filed with the court. If the parties are unable to make a decision on the use of an ADR process or a neutral, the court may order the parties to attend a non-binding ADR process. This does not mean parties are required to settle their differences through ADR. They are required, however, to at least discuss their differences with the neutral and attempt to resolve their differences prior to a trial.
How do I find a qualified neutral?
To find a neutral search the roster. You may search the roster by choosing the family or civil roster, by experience, and by county. Once you have a list, you may contact any of the qualified neutrals to find out their fees and experience.
How do I become a qualified neutral?
In order to become a neutral you must take an ADR course certified through State Court Administration. The course must meet the requirements in Rule 114.13. A sample list of course providers
. (The judicial branch is not endorsing or recommending these agencies due to their inclusion on this list.) Complete an ADR Neutral application after you have completed the required coursework to become a qualified neutral and be listed on the Rule 114 Neutral Roster. The application fee is $60.00.
What are the requirements to stay on the roster?
Qualified neutrals must pay a $35.00 annual renewal fee. In addition qualified neutrals providing facilitative or hybrid services must complete 18 hours of ADR related continuing education within a three-year reporting period. Qualified neutrals providing adjudicative or evaluative services must complete nine hours of ADR related continuing education within a three-year reporting period. Qualified neutrals providing all services need only complete 18 hours.
State Court Administration will mail the ADR Neutral Fee Invoice and an ADR Continuing Education Report Form approximately 90 days prior to the due date. If you need to obtain another copy of these documents, please send an e-mail to firstname.lastname@example.org
A person takes the required training to be on any Rule 114 list, but, by choice, they never actually get on the list for whatever reason. Can they say that they are "Qualified to be a Minnesota Rule 114 neutral" or that they are a "Minnesota Rule 114 qualified neutral?"
A neutral must be currently on the MN State Court Adminstrator's neutral roster to say that they are a "qualified neutral under Rule 114 of the Minnesota General Rules of Practice." See Rule 114 Code of Ethics, Rule VI Advertising and Solicitation.
What is the fee for a neutral and who pays the fee?
Parties are responsible for paying the neutral for their services. Typically, fees are based on an hourly rate established by the neutral. ADR services provided by some organizations have established a sliding fee scale based on the parties’ incomes. It is assumed that the parties will split the cost of the ADR process equally, unless they agree otherwise. Parties should be sure to discuss fees and payments prior to entering into an ADR agreement.
Is it possible to find out if a complaint has been filed against a neutral?
Information can only be given out if the ADR Ethics Board issued a public sanction against a neutral. Otherwise, all complaint information is private and confidential.
How do I file a complaint against a neutral?
Please see the Complaint Process section for detailed information.
What are the most common complaints received by the board regarding ADR neutrals?
Between 1998 and June 2013:
- 13 complaints filed against neutrals on the civil facilitative (mediation) roster.
- 2 complaints filed against neutrals on the civil adjudicative/evaluative roster.
- 127 complaints against neutrals on the family facilitative (mediation) roster. Of those 127, 64 were complaints against parenting time expeditors.
How many complaints are dismissed as unfounded?
Between 1998 and June 2013:
- Of the 144 complaints, 64 were dismissed without investigation and 80 were investigated.
- Of the 80 complaints that were investigated, 37 were determined to be ethical violations and 43 were dismissed.
Could you give us a breakdown of the number of ethics complaints by each Rule 114 Code of Ethics Rule number?
Total complaints of alleged ethical rule violation by rule (1998 - June 2013):
- Impartiality 96
- Conflicts of Interest 48
- Competence 47
- Confidentiality 50
- Quality of Process 110
- Advertising 16
- Fees 46
- Self-Determination 32
The ADR Ethics Board
What is the process for reviewing and handling a complaint?
The complaint process is summarized on Complaint Process tab.
At what point is the neutral notified that a complaint has been received? If a complaint is unfounded, is the neutral still notified?
The ADR Ethics Board determines whether, the allegation(s) of a complaint, if true, constitute a violation of the Rule 114 Code of Ethics. If the allegations, if true, constitute a violation, the neutral is notified that there will be an investigation and has thirty days to respond. If the allegations do not constitute a violation, the neutral is notified of the complaint and its dismissal, and receives a copy of the complaint.
Is there any recourse if there is a complaint about someone practicing ADR but not on the list of qualified neutrals?
The ADR Ethics Board only considers complaints against any individual or organization (neutral) placed on the roster of qualified neutrals pursuant to Rule 114.12 or serving as a court appointed neutral pursuant to 114.05(b) of the Minnesota General Rules of Practice. Neutrals may also be subject to ethical rules of their profession (such as Board of Social Work, Psychiatry or Attorney Professional Responsibility) or professional associations.
Of the complaints that have merit, what is a "typical" resolution?
The Board may impose sanctions if doing so is supported by clear and convincing evidence. (Code of Ethics Enforcement Procedure Rule III, Sanctions, Part B.) The Code of Ethics Enforcement Procedure Rule III, Sanctions, Part A includes, but is not limited to, the following:
- Issue a private reprimand.
- Designate the corrective action necessary for the neutral to remain on the roster.
- Notify the appointing court and any professional licensing authority with which the neutral is affiliated of the complaint and its disposition.
- Publish the neutral's name, a summary of the violation, and any sanctions imposed.
- Remove the neutral from the roster of qualified neutrals, and set conditions for reinstatement if appropriate.
ADR Ethics Board
Who serves on the ADR Ethics Board?
The thirteen-member board includes representatives of:
- Judiciary (5)
- MN State Bar Assn ADR Section liaison
- ADR solo practitioners (2)
- Twin Cities Metro
- Greater MN
- At large, specific qualities as needed
- Non Profit
- Family ADR (1)
- Family Practitioner (2)
Current board members are listed on Current Board Members tab.
What are the criteria for selection/appointment?
Individuals serving on the ADR Ethics Board who provide neutral services must be qualified neutrals under Rule 114, and be on the Rule 114 Roster of Neutrals maintained by the State Court Administrator. The Board elects a Chair from its members.
How are board members selected/appointed?
The State Court Administrator solicits applications for Board members. The Minnesota Supreme Court appoints members to the ADR Review Board.
The ADR Ethics Board makes recommendations to the Minnesota Supreme Court, which appoints members. The Ethics Board considers applicants' professional experiences and commitment to the importance of ADR in the MN court system. It also seeks to represent broad ADR backgrounds in its membership, and gender, racial, ethnic and geographic diversity, with members from throughout Minnesota. The Board also recommends applicants who contribute special expertise or knowledge on some aspect of policy that the Board expects to face in the near future.
The MN Bar Association ADR Section recommends members of the ADR Section to the ADR Ethics Board for the ADR Section liaison seat. The ADR Ethics Board then makes recommendations to the MN Supreme Court.
What other responsibilities does the ADR Ethics Board have beyond monitoring ADR practice and practitioners?
The Board Rules define its duties as:
The ADR Ethics Board will provide general oversight of ADR within the Minnesota State court system.
The Board shall have the power to receive complaints, investigate, conduct hearings and impose sanctions concerning allegations of inappropriate conduct by any individual or organization on the roster of qualified neutrals pursuant to Rule 114.13 or serving as a court appointed neutral pursuant to 114.05(b) of the Minnesota General Rules of Practice.
The MN Supreme Court adopted the current ADR Ethics Board priorities in an Order dated November 8, 2007:
A. Rule 114 Ethics Complaint Management
i. Review and respond to all ADR process complaints following the Rule 114 Ethics Enforcement Procedure.
ii. Investigate methods of publishing and educating neutrals on "best practices" and submit an implementation plan to the Supreme Court for approval.
iii. Make recommendations regarding ethics enforcement process improvement to the General Rules of Practice Committee.
B. Rule 114 Ethics Education and Outreach
i. Participate as experts in presentations to the bench, bar, and neutrals. Make recommendations to the State Court Education and Organizational Development Division for ADR ethics training needs.
ii. Service by board members on future state level judicial branch committeees or task forces relating to ADR as appointed by the Supreme Court or the Judicial Branch.
iii. Review and approval of Rule 114 training waivers as appropriate. (Rule 114.13)
C. Rule 114 Improvement
i. The Supreme Court may convene the ADR Ethics Board as a Rules Committee to consider Rule 114 changes and report to the General Rules of Practice committee.
ii. The Board may also request such action and give rationale based on members' knowledge of the ADR field and experience with ethics complaints.