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CHAPTER 8: OVERVIEW OF CIVIL CASES - Table of Contents

8.1 - Introduction8.2 - Where to find civil law8.3 - Starting a civil case: the complaint8.4 - Serving the complaint8.5 - Responding to the complaint8.6 - Requesting a jury8.7 - Alternate Dispute Resolution8.8 - Initial Procedural Requirements8.9 - Pretrial Discovery8.10 - Summary judgment motions8.11 - Trial8.12 - Damages, Costs and Attorneys Fees

8.7 ALTERNATE DISPUTE RESOLUTION

Some courts encourage or order civil parties to pursue some type of "alternate dispute resolution" (or "ADR") at some point during the life of their lawsuit, in order to promote settlements without judicial intervention. If such ADR is unsuccessful, the litigation merely resumes. With some limitations, the parties are also free to agree among themselves to pursue ADR instead of litigation, either by so agreeing in advance of any dispute (as part of an employment agreement, for example) or by coming to such an agreement during the life of the lawsuit.

ADR is often seen as less expensive, less formal and somewhat quicker than full-blown litigation. While ADR is sometimes seen as perhaps permitting some reduction in the unpredictability often associated with jury trials, some more-cynical practitioners sometimes wonder if that comes at the cost of an increased likelihood that the ultimate outcome will merely reflect a "split-the-baby" compromise between the two parties' position.

The most basic form of ADR is settlement mediation. A mediator merely attempts to facilitate a voluntary agreement among the parties, and has no power to dictate a particular outcome. The mediator could be a judge in the district in which the case is pending (but other than the judge assigned to the case), or a retired judge in one of several area mediation services, or a private attorney who emphasizes such work. As with criminal cases, the great majority of civil cases are resolved by voluntary settlement at some point, and a skilled mediator can often be extremely effective in focusing on real areas of dispute and fashioning a mutually acceptable (or mutually non-unacceptable) resolution.

A more involved form of ADR is arbitration. An arbitrator is empowered to actually decide a dispute, with the parties either retaining or agreeing to forego any challenge of that decision to a judge. [The latter type of arbitration is often referred to as "binding arbitration."] An arbitration procedure often ends up looking like a somewhat less formal version of a trial, with witnesses testifying in person before the arbitrator.

A hybrid version of ADR is referred to as "med-arb," wherein the mediator at some point transforms into an arbitrator if the mediation efforts prove unsuccessful.

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