October 2007
ON THE CUTTING EDGE: ADR IN NEVADA
BY WILLIAM C. TURNER, ESQ.
The growth of alternative dispute resolution programs throughout the country over the past 10 years reflects a major retreat from trial litigation as the final forum for resolving differences. There are many reasons for this retreat, but it can be attributed, in part, to the costs of litigation, the crowded court dockets, the lack of experienced litigators to both try and hear cases, the time it takes to get through the minefields of procedural practice, and, in some cases, the frivolous nature of the litigation itself.
The court system itself, overburdened by the phenomenal litigious nature of our society, and in most cases ill-equipped to handle the caseload, has directly encouraged other arbitration, mediation or mandatory settlement conferences. (One might even say that, on occasion, the litigants have had their arms twisted, ever so slightly, to bring them to resolve their differences.)
Nevada has not been free from the same forces of change. In the late 1980s and early 1990s, a committee of lawyers working in personal injury developed the outline of the now-mandatory arbitration system. At first the system handled only cases dealing with minor car accidents to be tried under this program. The program developed into a broader arbitration system encompassing all civil cases under $40,000, and then in 2005, it was determined that all civil cases under $50,000-- with certain exceptions as set out in the act-- must pass thorough the mandatory arbitration process. (See Nevada Rules of Arbitration and chapter 21 of the Nevada Civil Practice Manual.)
The growth of Nevada’s population and particularly the population of Las Vegas has dictated creative methods and approaches to resolving litigation without the lengthy delays that so often occurred before the enactment of the Short Trial Program. The creation of the Short Trial Program was a direct result of the long delays in getting to trial. The average time to trial at the time I chaired the first and second short trial commissions was three years and eight months.
Plaintiffs, defendants, the courts and third party insurers were ready for a new system that could shorten the time to trial with a concurrent reduction in expenses, while, at the same time, preserving the constitutional right to a trial by court or jury. The Short Trial Program limits trials to one day, and all cases that are not resolved in arbitration and that are not exempted our pursuant to the rules must so be tried in this program. The program received several national awards and is a model for other states to follow. Nevada is on the cutting edge, in many respects, in its arbitration programs.
There is no doubt that the court system and the litigants in Nevada are still seeking new ways to meet the growing demands that the caseloads have imposed. In addition to the Short Trial Program, a voluntary mediation program was created as an alternative to arbitration. This program seeks to cut the time and expenses found in the arbitration process.
Further, a court committee has been working for several years to create a system of mandatory settlement conferences wherein all cases within the District Court and exempt from arbitration (again, with certain exceptions such as construction defect) would be brought before a panel of judges (pro tem or otherwise). These judges would seek to obtain an early resolution of the cases by focusing the parties on the issues. It has been my experience, and that of other mediators, that many cases could be resolved much earlier if properly focused. Instead, they drift through the discovery process at great expense until the last moment before trial, when the litigants finally began to focus on the real issues. Some of these cases could have been resolved within the first month or two of litigation if the parties had simply sat down and talked with each other rather than communicating over each other through multitudinous pleadings.
Not only has Nevada been creative in its approach to ADR programs within the confines of district court litigation, but certainly its Appellate Settlement Judge program has been one of its outstanding accomplishments. Nevada does not have an appellate court. The Nevada Supreme Court, which has done a remarkable job of handling an increasing case load with significantly more complexity than in earlier years, has created a group of experienced settlement judges who mediate all cases on appeal before they go to the court (with certain exceptions). This group of pro tem settlement judges works at significantly reduced rates, seeking to resolve the cases before the costs and time of appeal are incurred. This program has a resolution rate of over 50 percent.
The growth of Nevada’s programs dealing with alternative dispute resolution reflects the ever-changing nature of litigation and the expanding role of alternative methods to resolve cases other than by trying them. In the early days of ADR there was only a discovery commissioner who handled ADR disputes. Due to the expansion of ADR programs, alternative dispute resolution programs now have their own commissioner. Commissioner Chris Beecroft has played a significant role in promoting and expanding these new programs. The expansion of alternative dispute resolution programs in Nevada, as reflected by figures obtained from Commissioner Beecroft’s office, mirrors the continuing growth and development of new programs.
From July 1, 1992 to June 30, 2007, 54,692 cases entered Nevada’s mandatory arbitration system. Fifty-seven percent of all civil cases are now assigned to the mandatory arbitration program. In the first 10 years of the program, over 40 percent of all cases in arbitration requested a trial de novo after arbitration. By 2006 requests for trial de novos had dropped to 20 percent.
The Short Trial Program has had a phenomenal growth in cases, reducing some of the burden on the crowded civil trial dockets. Between 2002 and January 1, 2005, 250 cases entered the Short Trial Program by way of stipulation. In 2006, when the program became mandatory, 518 cases entered the program and in the year 2007, as of August, 313 cases have entered the program. The number of pro tem judges has been increased and the number of days that short trials can be heard has gone from one to five days a week with an increase in available courtrooms.
The new voluntary mediation program, which was created in 2005 as an alternative to the arbitration system as a faster and more efficient way to resolve cases, has had a slow start. The total number of cases that entered the mediation program, from March 2005 to August 2007, was 11. However, significantly, of these 11, 100 percent were resolved through the mediation process. While the resolution rate is significantly higher than the arbitration program and it takes less money and time, this program is still in its trial period and will, it is expected, grow as more litigants see the benefits of the same.
No doubt there will be further changes to the ADR programs in Nevada as our population continues to grow and the number of complex cases expands with the growth of national and international law firms in this state. We are fortunate to have a progressive and farsighted judiciary and a bar that is interested in developing new, alternative approaches to litigation. With further cooperation from the state legislature and open communication with Nevada’s constituents, we can continue to stay on the cutting edge, developing new alternative resolution programs while assisting the courts in improving the judicial structure—including, hopefully, establishing a court of appeals.
William C. Turner is a settlement judge, short jury trial judge, statutory mediator, and a private mediator and arbitrator. He is in his fourth term as a member of the State Bar of Nevada Board of Governors. Appointed by the Nevada Supreme Court as Chair of the Study Commission on Lawyer Advertising, Mr. Turner has also chaired two commissions for the Nevada Supreme Court on short trials. For eight years, Mr. Turner chaired the Alternative Dispute Resolution Section of the State Bar of Nevada. Mr. Turner is a former federal prosecutor and has practiced law since 1969.