St Cloud Attorneys

In Buller vs. Minnesota Lawyers Mutual, the Minnesota Court of Appeals explored a tool that has not received as much attention as it should have in the trial lawyers toolbox.

The parties in Buller had attempted to have the alternative dispute resolution cake, and eat it too. As explained by the Court, an agreement had been reached whereby “an arbitrator” would be used to resolve certain disputed issues of the case.

However, at least one of the parties was unwilling to give up the appellate rights it had in District Court. The resulting agreement was characterized by the Court of Appeals as one establishing a “consensual special magistrate.”

Alternative dispute resolution with the advent of Court encouraged alternative dispute resolution in the 80’s, many attorneys reluctantly began to participate in mediations.

Arbitration had always been a form of alternative dispute resolution that was, more or less, accepted by the bar. Typically, however, arbitration was engaged in only when provided for in an employment, insurance, or other contract. Trial lawyers rarely opted for arbitration in the absence of such agreements already entered into by one or both of the clients involved.

Mediation slowly gained ground, under strong and insistent prodding, by Minnesota Trial Courts.

Although other forms of alternative dispute resolution such as early neutral evaluation and consensual special magistrates were talked about, they were rarely used by counsel.

Trial Court’s increasing irrelevance in the resolution of civil litigation. Even as the revolution in alternative dispute resolution was proceeding, the Trial Courts were retreating from their previously dominant position in the resolution of civil litigation.

The growth of juvenile, criminal, and family law matters all clamoring for District Court time led to an inevitable decline in the amount of time devoted to civil cases.

Parties, and their counsel, became increasing loath to trust serious disputes to the Trial Courts who were prepared to devote neither the time, nor the mental energy, to the resolution of those disputes.

Although there were a few notable exceptions, many Minnesota Trial Courts became increasing hostile to civil litigation and reluctant to devote the time needed to resolve such cases.

Arbitration’s fatal flaw. Mediation was proving to be an effective tool for the resolution of civil litigation. However, in those rare instances when the parties were simply unable to enter into a mediated compromise of their dispute, another form of alternative dispute resolution was needed to avoid the uncertainties in both scheduling and outcome attendant with civil jury trials.

Unfortunately, the leading candidate to provide such a mechanism, arbitration, had a very big flaw.

In serious matters, parties were unwilling to rely upon the decision of a single arbitrator, or even a three-person panel of arbitrators. Unlike the outcome of a jury trial, the award rendered by an arbitration process was generally not susceptible of further review.

In short, there was no appeal from most arbitration awards.

The consensual special magistrate; having your cake and eating it too. The recent Court of Appeals decision in Buller outlines a method by which parties can now avoid the uncertainty of result attendant upon a District Court decision and instead opt for the arbitration process while at the same time preserving access to appellate review.