There are many pathways to resolving legal disputes in Nevada other than litigating the matter in court. Some of those pathways, paradoxically, begin with one of the parties filing a lawsuit in court. Others are initiated by the parties without going to court. This article explores the various pathways to Alternative Dispute Resolution (“ADR”), including arbitration and mediation and the rules governing them.
Private ADR Options
Even though most mediations are privately held, they are still governed by Nevada Revised Statutes Chapter 38: Mediation and Arbitration (also known as the Uniform Arbitration Act of 2000). Nevada’s Rules Governing Alternative Dispute Resolution (“ADR Rules“) define “mediation” as “a process whereby a neutral third person, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.”
Arbitration is defined as “a process whereby a neutral third person, called an arbitrator, considers the facts and arguments presented by the parties and renders a decision, which may be binding or nonbinding . . ..” ADR Rules, Rule 1(A). In other words, parties hire a trusted person to act as a neutral party to judge and determine the outcome of their dispute. An arbitrator is “an individual appointed to render an award, alone or with others, in a controversy that is subject to an agreement to arbitrate.” NRS 38.209.
Choosing a Neutral
In Nevada, there are many resources to find qualified mediators and arbitrators. Local ADR provider groups include Advanced Resolution Management, the American Arbitration Association (“AAA”)–use the Find a Mediator tool, and JAMS. Other sites like Martindale-Hubbel, Super Lawyers, Mediation.com, and AVVO have biographies for individual mediators who may not be a panelist at one of the better recognized ADR provider groups.
What Rules Apply?
No party may be forced to pursue ADR unless they have previously agreed to do so by contract. A well-written ADR provision should address how the neutral (arbitrator or mediator) is to be chosen. If it does not and the parties cannot come to an agreement on their own, they may be forced to have a court assist them in choosing a neutral. NRS 38.226 is instructive of the process: “If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed, unless the method fails. If the parties have not agreed on a method, the agreed method fails, or an arbitrator appointed fails or is unable to act and a successor has not been appointed, the court, on motion of a party to the arbitral proceeding, shall appoint the arbitrator. An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed pursuant to the agreed method.”
Once a neutral is chosen, the ADR agreement should provide the rules under which the neutral will proceed (for an arbitration, what law applies and what rules of procedure will apply to the proceedings). If the agreement requires the administration of the matter by a national panel, their rules may apply. The AAA and JAMS have their own rules of procedure and ADR agreements requiring a matter to be administered by either group (unless otherwise stated) will require adherence to those rules. A private arbitration that does not otherwise specify the procedures must follow NRS Chapter 38, particularly NRS 38.206 – 38.248.
ADR Within the Court System
If a Nevada civil case is filed and the plaintiff is seeking less than $50,000 in damages, the matter must normally be heard in the non-binding (appeal-able) Court-Annexed Arbitration Program. That process is governed by the ADR Rules discussed above. The matter will be heard by a court-appointed arbitrator (with input from the parties and, as always, the ability to remove an arbitrator for a conflict of interest). Limited discovery is allowed, and the matter must normally be heard and decided within 6-9 months from the arbitrator’s appointment. Either party may appeal the arbitrator’s decision and opt to go through a short trial with a pro tempore judge (discussed below). The parties to a civil suit may also voluntarily agree to have the matter stayed and opt at any time to have it heard by arbitration.
Parties to litigation are always at liberty to engage in private mediation (discussed above). If a Nevada civil case is filed and the plaintiff is seeking less than $50,000 in damages, the matter may be referred the Court-Annexed Mediation Program IF the parties file a stipulation “within 15 days after the filing of an answer by the first answering defendant.” Further, many courts will facilitate a settlement conference mediated by a judge who is not assigned to the matter regardless of how much money is at controversy. Finally, in Business Court, the court will repeatedly encourage the parties to go to a settlement conference mediated by another business court judge. These conferences have proven track records for settling cases and reduce caseloads for the judges.
Short Trial Program
A short trial is presided over by an elected district court judge or, more often, by a pro tempore judge. The trial is governed by the Nevada Short Trial Rules and must be completed in one day, with each side being allowed 15 minutes to conduct voir dire and 3 hours to present its case. The matter may be heard with or without a jury. There are four ways to have a matter assigned to the short trial program: (1) a trial de novo appeal from an arbitration decision; (2) cases entering short trial program after unsuccessful mediation in lieu of arbitration through the Court-Annexed Mediation Program; (3) short trial in lieu of arbitration; and (4) stipulation to enter the program regardless of whether the matter is exempt from the Court-Annexed Arbitration Program. Short Trial Rules, Rule 4.
Appellate Mediation Through the Nevada Supreme Court Settlement Program
Once a matter is decided at the district court level and a party or parties file a notice of appeal, most matters must go through the Nevada Supreme Court Settlement Program. According to the Supreme Court, “[g]enerally, any civil appeal, except those in which any party is not represented by an attorney or which involves termination of parental rights, may be referred to the settlement program.” The Program, governed by Nevada Rules of Appellate Procedure, Rule 16, appoints a Supreme Court Settlement Judge to assist the parties in settling their dispute. The program boasts, according the Supreme Court’s website, a 52% settlement rate.
Jay Young is a Mediator and Arbitrator in Las Vegas, Nevada.