Minn. Gen. R. Prac. 114.02

As amended through February 1, 2024

Rule 114.02 - Definitions

The following terms shall have the meanings set forth in construing these rules.

(a) Adjudicative Processes

(1)Arbitration: A process in which a Neutral or panel renders an award after consideration of the evidence and presentation by each party or counsel . The award may be binding or non-binding, pursuant to the agreement of the parties.

(2)Consensual Special Magistrate: A process in which a Neutral decides issues after the parties have presented their positions in a similar manner as a civil lawsuit is presented to a judge. This process is binding and parties have the right of appeal to the Minnesota Court of Appeals.

(3)Summary Jury Trial: A process in which a Neutral presides over the parties' abbreviated presentation of evidence and argument to a jury. The jury issues a verdict which may be binding or non-binding, according to the agreement of the parties. The number of jurors on the panel is six unless the parties agree otherwise. The panel may issue a binding or non-binding decision regarding liability, damages, or both.

(b) Evaluative Processes

(1)Early Neutral Evaluation (ENE): A process in which one or more Neutrals with experience in the subject matter of the dispute reviews information from the parties or their attorneys after the case is filed but before formal discovery is conducted. The Neutral may give an assessment of the strengths and weaknesses of a claim, case, or defense; an opinion of settlement value; and an opinion as to how the parties should expect the court to rule on the case or issue presented. The parties, with or without the assistance of the Neutrals, negotiate after hearing the Neutrals' evaluation. If settlement does not result, the Neutrals may help s narrow the dispute and suggest guidelines for managing discovery.

(2)Non-binding Advisory Opinion. A process in which the parties and their counsel present their position before one or more Neutral(s). The Neutral(s) then issue(s) a non-binding advisory opinion regarding liability, damages, or both.

(3)Neutral Fact Finding: A process in which the parties present evidence and argument to a Neutral who analyzes a factual dispute and issues findings. The findings are non-binding unless the parties agree to be bound by them.

(c) Facilitative Processes

(1)Mediation: A process in which a Neutral facilitates communication and negotiation to promote voluntary decision making by the parties to the dispute.

(d) Hybrid Processes

(1)Mini-Trial: A process in which each party and their counsel, if any, present their positions before a selected representative for each party, a neutral third party, or both, to develop a basis for settlement negotiations. The Neutral(s) may issue an advisory opinion regarding the merits of the case. The advisory opinion is not binding unless the parties agree that it is binding and enter into a written settlement agreement.

(2)Mediation-Arbitration (Med-Arb): A process in which a Neutral first mediates the parties' dispute and then, in the event of an impasse, serves as arbitrator of the dispute. The decision may be binding or non-binding, pursuant to the agreement of the parties.

(3) Arbitration-Mediation (Arb-Med): A process in which the Neutral first serves as an arbitrator of the parties' dispute. Prior to issuing the decision, the Neutral will mediate. In the event of impasse, the Neutral discloses the decision which may be binding or nonbinding, pursuant to the agreement of the parties.

(4)Other: Parties may create other ADR processes by means of a written agreement that defines the role of the Neutral.

(e)Neutral. A "Neutral" is an individual who provides an ADR process under this rule.

(f) Qualified Neutral. A "Qualified Neutral" is an individual or Community Dispute Resolution Program (CDRP) listed on the State Court Administrator's roster as provided in Rule 114.12.

Minn. Gen. R. Prac. 114.02

Amended effective 1/1/2005; amended effective 1/1/2023; amended effective 1/1/2023.

Implementation Committee Comments-1993

The definitions of ADR processes that were set forth in the 1990 report of the joint Task Force have been used. No special educational background or professional standing (e.g., licensed attorney) is required of neutrals.

Advisory Committee Comment-1996 Amendment

The amendments to this rule are limited, but important. In subdivision (a)(10) is new, and makes it explicit that parties may create an ADR process other than those enumerated in the rule. This can be either a "standard" process not defined in the rule, or a truly novel process not otherwise defined or used. This rule specifically is necessary where the parties may agree to a binding process that the courts could not otherwise impose on the parties. For example, the parties can agree to '"baseball arbitration" where each party makes a best offer which is submitted to an arbitrator who has authority to select one of the offers as fairest, but can make no other decision. Another example is the Divorce with Dignity Program established in the Fourth Judicial District, in which the parties and the judge agree to attempt to resolve disputed issues through negotiation and use of impartial experts, and the judge determines unresolved preliminary matters by telephone conference call and unresolved dispositive matters by written submissions.

The individual ADR processes are grouped in the new definitions as "adjudicative," "evaluative," "facilitative," and '"hybrid." These collective terms are important in the rule, as they are used in other parts of the rule. The group definitions are useful because many of the references elsewhere in the rules are intended to cover broad groups of ADR processes rather than a single process, and because the broader grouping avoids issues of precise definition. The distinction is particularly significant because of the different training requirements under Rule 114.13.

Advisory Committee Comments - 2022 Amendments

Rule 114.02 is amended to clarify and update the specific processes available for use in court-annexed ADR. The mini trial is retained as an available process, although it is rarely used. The definitions of "Neutral" and "Qualified Neutral" are important under the revisions made to Rule 114. Any person providing ADR services under Rule 114 is a Neutral and thereby is subject to Rule 114 and is deemed under Rule 114.04(a) to have consented to the authority of the ADR Ethics Board.

The definition of "Consensual Special Magistrate" borrows from the Special Magistrate process set forth in Minn. Stat. § 484.74, subd.2a, which is limited to the Second and Fourth Judicial Districts. The two processes are different, however, and care should be taken when specifying which process is being selected. See generally Daniel S. Kleinberger, The Consensual Special Magistrate, Minnesota's Appealable Alternative to Arbitration , Bench & B. Minn. (Jan. 2016).

According to the ADR Ethics Board's 2017 report to the Court, the definition of "Non-Binding Advisory Opinion" was added in 2007 to replace the Moderated Settlement Conference for civil matters as it was easier to understand the contours of the process and whether it was truly adjudicative as opposed to evaluative in nature. See Recommendations of the Minnesota Supreme Court Alternative Dispute Resolution Ethics Board, #ADM09-8009 11-12 (July 14, 2017). The Moderated Settlement Conference process is being reintroduced in family court Rule 310 as a process primarily used in the later stages of family court matters.