Multi-door Courthouse Concepts
The Colorado General Assembly statutorily encourages parties and counsel to “seek the most appropriate forum for the resolution of their dispute,” and adds that, “Judges may provide guidance or suggest an appropriate forum.”
A Private Judge process, as defined by Colorado statute, allows the parties to choose and hire a specific retired or resigned judge to hear their case. The private judge fulfills his or her judicial duties in much the same manner and with the same authority as a regularly sitting judge. This process expedites the parties’ court proceedings because the private judge is most likely more accessible and able to focus on the case than a full-time sitting judge who is handling an extensive court docket.
A Mini-Trial is an effective method to avoid unexpected results that may arise from an actual trial. The parties present their case to the neutral advisor by an agreed-upon process designed to provide the neutral sufficient information to realistically evaluate the merits of each party’s claim. The neutral’s evaluation and decision, if any is announced, is advisory only. The Mini-Trial process enables you to obtain an unbiased professional opinion on the factual and legal merits of your claim before subjecting yourself to the uncertainty of a judge’s or jury’s decision.
An Early Neutral Evaluation allows the parties in pending litigation to work with a professional to identify, define, and refine the issues in their dispute. Once the issues are distilled down to case-dispositive matters, the evaluator considers and evaluates the parties’ claims and defenses. That evaluation may lead the parties to reconsider their positions and to seek settlement of the case. If settlement is not reached, the evaluator may assist in organizing and managing the case for further proceedings.
A Med-Arb process includes features of both mediation and arbitration. The parties must agree in advance that they will try to resolve their dispute by mediation, and if they cannot settle the dispute, to convert the process to binding arbitration with the mediator then serving as the arbitrator. Because this process results in a binding arbitrator’s decision absent resolution of the dispute by mediation, the parties often settle in mediation to avoid having their dispute decided by a third party.
A Fact-Finding process helps settle disputed facts underlying the parties’ conflict. Settlement negotiations based on differing perceptions of the operative facts are seldom productive. The parties may agree to advisory or binding factual determinations by an impartial neutral to obtain a heads-up on what a judge or jury might decide are the relevant and material facts in the case. The fact-finder determines facts but does not draw any conclusions from those facts. The parties use these factual findings to evaluate the potential outcome of a court proceeding and to inform the course of settlement negotiations.
A Special Master provides assistance to the court and the parties to expedite the court proceedings. The master may be appointed to perform duties consented to by the parties, such as, for example, overseeing the discovery process or presiding over a corporate annual meeting. The court may also appoint a special master to hold trial proceedings and make factual findings when an exceptional condition exists, an accounting is needed, or to resolve a difficult damages computation. A master may also address pretrial and posttrial matters that cannot be effectively and timely addressed by the court.
A Settlement Conference may be helpful before or during court litigation and, by definition, is designed to encourage the parties to settle their dispute. The conference is conducted by an experienced lawyer or judge who reviews and evaluates the parties’ claims, supporting evidence, and applicable law. Unlike the neutral in other ADR methods, the professional here advises the parties about the law and its impact on their claims. The professional also actively recommends settlement terms based on the merits of the parties’ respective claims under the law. The parties ultimately decide whether to accept the professional’s recommendations and settle their dispute.
“If the only tool you have is a hammer, you tend to see every problem as a nail.”