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Section Column: ADR Law: Alternative Dispute Resolution in Nevada

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OCTOBER 2009
NEVADA LAWYER
ALTERNATIVE DISPUTE RESOLUTION SECTION
AlTERNATIVE DISPUTE RESOlUTION IN NEVADA
BY M. NElSON SEGEl, ADR SECTION CHAIR, STATE BAR OF NEVADA
Nevada has been on the forefront of the implementation of forms of alternative dispute resolution (ADR) and continues to develop methods of resolving disputes without the cost and delay of a trial. The ADR process has two benefits. First, it reduces the cost to litigants. Secondly, it enables the judiciary to more easily deal with its caseload. Without ADR, the heavily burdened judiciary would have an even longer backlog of cases than it already does. The Court Annexed Arbitration program was introduced in 1991 and became effective July 1, 1992. Cases with a probable value of less than $50,000 per plaintiff must go through the program unless an enumerated exemption exists. Effective March 1, 2005, mediation was adopted as an alternative method to the Court Annexed Arbitration program. This process enabled the parties to meet with a neutral negotiator to assist them in resolving their dispute. In June 2002, Nevada implemented a novel program known as the Short Trial program. Under this program, cases that are appealed from the Court Annexed Arbitration program are heard by pro tempore judges, in hearings that last only one day. This program has received numerous accolades for its unique handling of disputes and its success. Litigants have been able to complete the process rapidly and at a substantially reduced cost from “full-blown” litigation. The justice courts have recently adopted rules to allow short trials to be held for its cases. The trial court level is not the only place that ADR is being utilized in Nevada. The Nevada Supreme Court adopted a “Settlement Judge” program in 1997. Under that program, most civil cases that are appealed to the Supreme Court must participate in mediation with court-appointed “Settlement Judges.” Although one party has won in the District Court and the other party has lost, the Settlement Judge program has had a resolution rate of 53 percent of matters that have been appealed. The Settlement Judge program has enabled the Supreme Court to deal with its enormous case load and to reduce backlogs. The latest program to be adopted in Nevada is Foreclosure Mediation. In 2009, the Nevada Legislature passed AB 149 to deal with the growing residential foreclosure problem. Homeowners have been largely unable to make contact with a person with the authority to discuss
forbearance, modification or other methods of resolving their inability to keep loan payments current. Effective July 1, 2009, a grantor, or person who holds title, may request mediation upon receipt of a notice of default and election to sell. By the time you read this, more than 1,000 properties will have gone through the mediation process. For more information on the progress of the Foreclosure Mediation Program see the item on page 34. The courts of Nevada continue to develop methods of ADR. The civil judges of the Eighth Judicial District Court have authorized the creation of a committee to develop a program of mediation for cases over $50,000. The committee has been charged with the responsibility of developing a program that will be workable and will benefit the courts and litigants. The current thought is that the program should be flexible. It appears that mediation is becoming an accepted method of dispute resolution in Nevada. However, there has been no agreement as to when mediation should take place. It appears that those in the personal injury arena prefer to proceed through the litigation process to assure that they have a full understanding of the case. This applies to plaintiff and defense counsel. Alternatively, business litigants appear to prefer prompt resolution. Too often the cost of litigation prevents the parties from being able to reach an agreement. It appears that some believe it is better to leave a few dollars on the table, or pay a little more than desired, to save the cost of the litigation. Either way, it appears that mediation throughout the courts is likely to take place. If you have thoughts regarding this proposed process, please contact the author at nelson@nelsonsegellaw.com.
M. NElsoN sEGEl has been in private practice in Las Vegas since 1981. He is the chairman of the State Bar of Nevada’s ADR section. In addition to serving as District Court and foreclosure mediator, he serves as a Supreme Court settlement judge, a justice of the peace pro tempore and a short trial judge pro tempore.
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