Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR)
1. Traditional Private Alternatives to Trial: They are possible with private interactions. They occur before filing the complaint.
A. NEGOTIATION: The parties use bargaining techniques to resolve the dispute.
B. MEDIATION: Mediation adds a third party. He is called the MEDIATOR. His task is to facilitate the negotiation. He does not decide.
C. ARBITRATION: The disputing parties go before their chosen private judge, the arbitrator. He is neutral and expert on the subject matter of the dispute.
D. MINI-TRIAL: It involves a private presentation of evidence to a neutral expert who is hired to preside over an abbreviated non-binding trial.
2. Court-Annexed Alternatives: (luego de presentar la demanda in court). In many jurisdictions, this stage is mandatory.
A. COURT-ANNEXED MEDIATION: a court may order mediation at trial or the appellate level. This type of mediation is increasing in cases which involve divorce and family law.
B. EARLY NEUTRAL EVALUATION: There is a neutral third party which studies the case, he meets the parties and makes a pre-trial prediction on the outcome which would result from a full trial.
C. JUDICIAL MEDIATION: Judges, in occasions, act as mediators in an effort to settle cases (resolver). Some of them mediate the cases which they were assigned, and others assign the task to a different judge.
D. SUMMARY JURY TRIAL: The aim is to provide the parties with a non-binding preview of the jury verdict to promote settlement. The parties have a brief time to present the evidence before a real jury.
E. COURT-ANNEXED ARBITRATION: (CAA) may apply to all civil cases or to civil cases under a certain amount of money. The ruling is non-binding. In CAA, the party who appeal and does not improve the arbitrated result is penalized by payment of the process to whom it corresponds to.
F. RENT-A JUDGE (PRIVATE JUDGING): Severe states have legislation that permits the parties to hire their own judge who renders a decision. It is criticized since people who can afford the payment receive prompt dispute processing while the others not.
3. Administrative Agency-Annexed Alternatives:(las utilizan las agencias administrativas para resolver disputas entre ellos).
A. REGULATORY NEGOTIATION B. AGENCY-ANNEXED MEDIATION
CHARACTERISTICS OF MEDIATION: Legal practitioners begun to recognize that mediation constitutes an important part of the dispute resolution process and it also enhances the probability of successful neutral intervention. The advocates must understand the role of mediators, so they can prepare themselves and their clients for mediation sessions. Moreover, practitioners who occasionally or regularly act as mediators must also familiarize themselves with the techniques employed by successful mediators.
CHARACTERISTICS OF ARBITRATION: Arbitration has appeared in a different context apart from negligent torts to resolve intentional claims of alleged discrimination.
There are many types of arbitration and each has its owns features. Moreover, one of the main selling points of arbitration is its ability to incorporate the precise ADR characteristics desired by the parties.
How to appeal? By filling the notice of Appeal (escrito de interposición del recurso).
An Appeal may be taken only by filling a notice of appeal with the district clerk. The time is within 30 days after the entry of the judgement/order which is appealed and 60 if one of the parties is the US, a US agency or a US officer/employee sued in an official capacity or for an act which was done by him in representation of the US. if the appellant fails to file the notice of appeal in due time, the appeal is still valid, but the court may consider it inappropriate and can dismiss it.
CONTENTS OF THE NOTICE OF APPEAL: Specify the party/parties. Designate the judgment or order appealed. Name the court to which the appeal is taken. How to serve notice of appeal? The district clerk must serve notice by mailing a copy to each party’s counsel and also to the clerk of the court of appeals. The date when the notice of appealed was filed must be on each copy. If the district clerk fails to serve notice, the validity of the appeal continues.When referring to fees, after the notice of appeal is filled, the appellant must pay to the district clerk the corresponding fees. Multiple appeals: if one party files a notice of appeal, other parties may file a notice of appeal within 14 days after the first note was filed. When to reopen the time to file an appeal: the district court possesses the power to reopen the time to file an appeal for a period or 14 extra days if the moving party (actora) didn’t receive notice of the entry of judgment in order to appeal, the motion if filled within 14 days after the moving party received notice of the entry, the court states that no party would be prejudiced.
Docketing the appeal: the circuit clerk must docket the appeal under the title of the district-court action and must identify the appellant with his name when receiving the notice of appeal and dockets entries from the district clerk.
Filing a representation statement: if the court of appeals does not change the normal rule, the attorney who filled the notice of appeal must within 14 days of filing the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal.
Filing the record: when receiving the record, partial record or district´s clerk certificate, the circuit clerk must file it and notify all parties of the filing date.
Rule 27: MOTIONS.
Application for relief. It is made by motion and in writing.
Content: 1) The ground, relief sought and necessary legal argument.
2) Accompanying documents: any affidavit or other necessary paper such as a copy of the trial´s court´s opinion.
3) Documents which are not required: separate brief supporting or responding to the motion, a notice of motion.
Response to a motion: any party may file a respond to a motion which must be filled 10 days after service of the motion unless the court changes de period. It has to include a motion for affirmative relief
.Reply to response: filed within 7 days after the service of response. Not include matters which are not related to the response.