By Mónica Dooner Lindgren
As I sit down to write this column, my mind is filled with the many conflicts and disagreements that have caused uncertainty and anxiety in our world these days. Whether it is a conflict between nations, differences of opinions about how to care for our earth, variances in opinions about the educational needs of our children, or racial equity discord, we have seen an array of methods used to reach resolutions.
Through the years, our courts have turned to the use of Alternative Dispute Resolution (ADR) to assist litigants in resolving legal disputes. Did you know that Rule 114.01[1] of the Minnesota General Rules of Practice requires that most civil cases filed in district court are dependent on some form of alternative dispute resolution process? The court sets forth exceptions to this rule in family law matters where there is domestic violence between the parties, contempt actions, or when a public agency may be responsible for enforcing financial support.
ADR can be beneficial prior to filing a court case, as the case proceeds in court, or in post-decree matters. Courts have recognized that presenting methods to resolve issues or narrow down issues outside of court, gives litigants the ability to create resolutions that reflect their values and circumstances. Litigants that participate in ADR can often resolve matters in far less time than if their matter were to proceed in court for resolution by a trial. In turn, this reduces litigation fees and emotional stress. As a confidential process, it allows parties to share information that may not have been shared in court, as well as consider non-traditional options that best suit their situation. This can result in comprehensive agreements that parties feel represent their interests and values.
Common forms of Alternative Dispute Resolution processes in Minnesota are identified as follows:
Facilitative - Mediation
Evaluative – Early Neutral Evaluation (Family Law cases), Moderated Settlement Conference, Non-binding Advisory Opinion, and Neutral Fact-Finding Investigation
Adjudicative – Arbitration, Consensual Special Magistrate, and Summary Jury Trial
Hybrid Processes – Mediation-Arbitration, Arbitration-Mediation, Parenting Time Expediting, Parenting Consulting, and Mini-Trial.
A neutral third person or team works with parties to help them reach resolution and/or narrow down issues in dispute. The neutral party is often trained in the area of law in which the parties are seeking assistance. In addition, a neutral’s background as a licensed professional—ranging from therapists to attorneys—diversifies the approach to dispute resolution. This allows parties to examine multiple options in greater depth to reach their goals.
The Minnesota State Court System has developed a list of “Qualified Neutrals” who are professionals that have completed training to meet the requirements set forth in Rule 114 of the Minnesota General Rules of Practice.[2] I recently completed a Family Skills Mediation Training that provided me with new skills and broadened my approach to lawyering. Through the procedural and ethical aspects of mediation and practicing concepts through simulated hypotheticals, I gained skills to serve as a neutral person who can help parties identify issues to resolve and formulate options to reach agreements. Little did I know how these skills would enhance my approach to being a legal advocate to my clients. As lawyers, we can be more client-centered by offering a range of options for clients to resolve disputes, as opposed to focusing solely on resolving the legal issue through traditional litigation. With demanding schedules, deadlines, and obligations to advocate for clients, too often we are focused on the “problem” and “solving it”.
I’m reminded of the key role that ADR has in assisting litigants’ engagement in their legal process. Further, I’m mindful of how many litigants are unaware of alternative processes to resolve disputes; or litigants who may have participated in a process but left with a feeling of being unheard due to cultural or language barriers. BIPOC litigants face this reality. Due to racial, cultural, language, and financial barriers, litigants of color are not consistently receiving the benefits of ADR. Racial, cultural, and language barriers can prevent participants from describing their proposals, as well as understanding terms of a possible agreement. In some dispute resolution sessions where I have represented a client that shares my Latinx culture and the neutral is from majority culture, I’ve observed the struggle to articulate proposals to the neutral party that participants experience. The participants feel the need to explain themselves more to validate their offer. Financial barriers may limit litigants to consider participating in an ADR process due to fees. This is especially true for non-English speaking people, as the added interpreter fees or locating an interpreter who speaks their dialect can be a great hardship.
At a time where there is a great emphasis in resolving disputes outside of court, there is also a crucial need to offer equal access to ADR processes. Ramsey County District Court has been at the forefront of meeting this need through the help of dedicated volunteers who have developed a Volunteer Mediation Program. This resource allows low-income litigants to engage in mediation when beneficial to their cases. Income-eligible litigants can also participate in other forms of ADR at a lower fee with a valid In Forma Pauperis Order. Given our diverse BIPOC communities in Ramsey County, we also need to strive to provide bilingual and bicultural neutrals. When the neutral party is of the same culture and speaks the native language of participants, settlement proposals are more creative and can better meet the goals of participants. This approach not only increases participation, but also welcomes an agreement that is significantly broader than what a court might grant. The parties are given the power to invest in the process.
I encourage all of you to consider incorporating ADR methods as part of your practice and representation of clients. Further, I invite you to consider becoming a Rule 114 qualified neutral. We are fortunate to have many RCBA members who are legal and non-legal professionals, and who have paved the way to provide alternative ways to resolve disputes. I look forward to working alongside them and serving our legal community in this capacity!
Mónica Dooner Lindgren is an Immigration Law attorney in St. Paul, advocating for and representing Minnesota’s immigrant community for over 20 years. Prior to shifting to Immigration Law, she specialized in Family Law matters, with a special emphasis in working with victims fleeing from domestic violence and crime victims.