May 19, 2013

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Colorado Court of Appeals: Arbitration Award Must Be Confirmed by Trial Court if Not Timely Appealed

March 7, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in In re Marriage of Rivera on Thursday, February 28, 2013.

Dissolution of Marriage—Arbitration Award—CRS §§ 13-22-222(1) and 14-10-128.5(2).

In this dissolution of marriage proceeding, husband appealed from the trial court’s order partially confirming an arbitration award as to property and maintenance provisions and ordering a hearing on the remaining parenting issues. The order was reversed and the case was remanded with directions.

Husband and wife agreed to resolve the terms of their dissolution of marriage through mediation and arbitration. At mediation, they agreed to joint decision-making authority and adopted the parenting schedule recommended by the child and family investigator. The parties agreed the mediator would be designated as an arbitrator to resolve any dispute arising out of the mediated agreement.

The parties then disputed the property distribution provisions in the mediated agreement and proceeded to arbitration. The arbitrator entered a final award, which reaffirmed the parenting time agreement. Wife then filed a motion requesting trial court confirmation of the arbitration award under CRS § 13-22-222(1), and husband objected on grounds not relevant to the appeal. The court held a hearing wherein husband withdrew his objection, and both parties requested the mediated agreement and arbitration award be made orders of the court.

Following a colloquy with wife, the trial court determined that wife did not believe the mediation agreement was fair and therefore stopped the hearing, declined to confirm the arbitration award, and set a permanent orders hearing. Husband then moved to confirm the arbitration award under CRS § 13-22-222(1). He stressed that because neither party had timely sought to vacate, modify, or correct the award, the court was required to confirm it. Wife agreed, but objected as to the provisions concerning parenting issues. The court entered an order confirming all property and maintenance provisions, but ordered all parenting issues remain set for hearing. Husband appealed.

Husband argued that because he and wife resolved the dissolution through arbitration and wife did not seek to vacate, modify, or correct the arbitration award in a timely manner, the trial court lacked authority to set a permanent orders hearing to resolve parenting issues. The Court of Appeals agreed. CRS § 14-10-128.5(2) provides a specific means by which a party may seek trial court review of an arbitration award. The motion for a hearing must be made no later than thirty-five days after the date of the award. Here, no such timely request was made. Accordingly, the order was reversed and the case was remanded to confirm the award in its entirety.

Summary and full case available here.

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Successfully Resolving Your Clients’ Legal Problems: Choosing the Right Model

May 3, 2012 by Leave a Comment

Over the last several decades, alternative methods for addressing conflicts among private citizens have received increasing attention. This movement has been driven by a number of factors inherent in the public court system: (1) delays, (2) expense, (3) formality, and (4) uncertainty. As a result, alternatives to the public court system continue to develop.

These alternatives include Adjudication, Negotiation, and Evaluation, each with their own pros and cons and each suited better for particular clients and cases.

Jean Stewart will be in the CBA-CLE classroom on Monday, May 7, 2012 to discuss the various forms of alternative dispute resolution (ADR) that have been most successful and that offer the most promise. Attorneys will benefit from understanding these alternatives, and will learn:

  • How to prepare for the various kinds of ADR;
  • How they work and when they are viable;
  • How to counsel clients on each kind; and
  • How to use them successfully.

Whether you are new to ADR or a seasoned professional, Ms. Stewart will provide useful information and insider tips to build your practice and better serve your clients.

CLE Program: Successfully Resolving Your Clients’ Legal Problems – Choosing the Right Model

This CLE presentation will take place on Monday, May 7. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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New Instructions to Request Reduced Mediation Fees Released by State Judicial

March 28, 2012 by Leave a Comment

The Colorado State Judicial Branch has issued a new Filing Fees form. The new form provides instructions on how to complete a request to reduce mediation fees under JDF 211. Practitioners should begin using the new instructions immediately.

Download the new form from State Judicial’s individual forms pages, or below.

Filing Fees

  • Instruction – “Instructions to Complete Request to Reduce Mediation Fees (JDF 211)” (3/12)

State Judicial also continues to update many forms to include the new time computation (“Rule of 7″) rules and filing fee requirements. Check the State Judicial website for the most up-to-date forms. State Judicial is reviewing all JDF forms and instructions, however it is always the Parties’ responsibility to ensure compliance with the Supreme Court rules. It is therefore important to review the time calculation rule changes prior to filing, as many of the forms have not been reviewed and changed yet.

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Employment Law and Social Media: Rights, Obligations, and Disputes in the Workplace

February 15, 2012 by Leave a Comment

The intersection of social media and the workplace has become a given. Use of social media is rapidly expanding while societal norms regarding exposure of employment-related information continue to erode. The result is an increasingly complex social media environment for employees, employers, and attorneys.

Added to the complicated mix are various cases and National Labor Review Board opinions that attempt to define what recourse an employer has against an employee over social media content. When can an employer fire an employee over what the employee said on their personal social media accounts? When is the employee’s speech protected? The questions can sometimes be hard to answer, especially if the company has an underdeveloped, or no, social media policy.

Once an employment decision is made, a host of new issues arise regarding the discovery of social media. Different rules apply to the discovery process in the context of litigation and mediation, and the distinction of what may or may not be discovered in either situation could make all the difference in a case.

On February 22, 2012, join us at CBA-CLE to learn about employment law and social media trends and how they affect you, your clients, and your practice.

This interactive program, Employment Law and Social Media: Rights, Obligations, and Disputes in the Workplace, will use hypotheticals and audience inquiries to approach numerous issues important for practitioners, including:

  • Recent Court decisions and NLRB opinions and their impact on workplace social media policies;
  • Discovery and use of social media in litigation; and
  • Discovery and use of social media in mediation.

As a primer for the discussion, Magistrate Judge Kristen L. Mix, a faculty member for the program, has provided us with a number of Practice Tips that attorneys should be mindful of when engaging in discovery of social media in litigation:

  1. Seek discovery of social networking information from the opposing party before subpoenaing Facebook or other social networking websites.
  2. Perform a public search for information usually available on a social networking website.
  3. Be mindful of your ethical responsibilities. Hiring a private investigator to “friend” the opposing party may be “inherently deceitful and unethical, even if the investigator uses his own name.”(1) Contacting the opponent yourself would likely be impermissible direct contact, and may also violate the rule providing that a lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.(2)
  4. In complex cases, explore the possibility of “unbundling,” or development of a litigation management team to handle electronic data.(3)
  5. This is not your father’s discovery. Successful discovery of social networking information may require significant efforts to educate the judiciary about the fallacy underlying electronic discovery (just because something is electronic, it can be searched and produced instantly) and the actual cost and burden of production.
  6. Advise your clients to be prudent and avoid spoliation sanctions. “The courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed and produced to the opposing party.”(4)
  • (1) Phil. Bar Ass’n Prof’l Guidance Comm. Op. 2009-02 (Mar. 2009), available at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf.
  • (2) See, e.g., Robert S. Kelner & Gail S. Kelner, Social Networks and Personal Injury Suits, N.Y.L.J., Sept. 24, 2009, available at www.law.com/jsp/nylj/PubArticleFriendlyNY.jsp?hubtype=&id=1202434026615.
  • (3) Howard B. Iwrey et al., A Multidimensional Solution to the Problems of Runaway Discovery, 29 No. 6 OF COUNSEL 12 (June 2010) pp. 2-3.
  • (4) Pension Comm. of the Univ. of Montreal Pension Plan v. Bank of Am. Sec. LLC, 685 F. Supp. 2d 456, 472 (S.D.N.Y. 2010).

CLE Program: Employment Law and Social Media – Rights, Obligations, and Disputes in the Workplace [RESCHEDULED]

This CLE presentation has been rescheduled. Check back soon for program information or call (303) 860-0608.
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D. Colo. Civil Settlement Conferences No Longer Routine

January 10, 2012 by 1 Comment

In a surprise move by the Colorado federal district court last month, the customary D. Colo. magistrate judge settlement conference has essentially been cut back significantly. Apparently frustrated with the typical half-day exercise, sometimes stretching over several sessions, featuring oft-times unprepared litigants, the district judges implemented revised Local Rule 16.6, effective December 1, 2011. The revised rule and the redline edits can be viewed below.

As Magistrate Judge Boland explained at the Faculty of Federal Advocates annual meeting in mid-December, parties will now need to file a motion with their district judge, or the magistrate judge if exercising consent jurisdiction, to warrant a classic settlement conference: “It is going to be hard to obtain, and you will have to persuade a judge that you are close to settlement and need help.” In short, for those parties who historically dropped in unprepared for an early settlement meeting, or did not wish to make the first move – hoping that the magistrate judge would extract offers, uncover and convey key information, and do the heavy lifting in settlement – the game is over. As Boland elaborated, “there is a booming industry of private mediators, and there is only a small cadre who can adjudicate cases. It makes sense in a very busy court to use resources to adjudicate.”

The revised rule puts the burden on counsel to show some good reason (the rule does not require the high showing of “good cause”) to trigger the traditional magistrate-judge-led settlement conference. Though probably not very early in the litigation process, as it appears that any “early” request will qualify only for “early neutral evaluation” (“ENE” in the ADR vernacular) (Rule 16.6A), which theoretically could be quite an abbreviated effort. Thus, parties will likely need to turn to private ADR options unless they can explain in detail to the court that far reaching settlement steps have already been taken by both sides, or perhaps that one of the litigants cannot afford his or her half of the cost of a private neutral.

The revised rule is somewhat controversial. The comment period was relatively short and no comments were disclosed by the court, though several respondents went public with their opposition to the change. In addition, several senior Article III judges were concerned that the freeing up of magistrate judges from settlement work would inexorably lead to an unconstitutional expansion of adjudications by the Article I magistrate judges. Read Judge Kane’s dissent concerning revised Rule 72.2 on magistrate judge consent jurisdiction here.

It is too early to speculate about the ultimate impact of the Rule 16.6 revision. Each judge retains the right to direct the parties, presumably either by motion or sua sponte, to pursue either ENE or an “other” (undefined) ADR proceeding:  this could presumably still be the traditional magistrate judge settlement conference, or more likely a private-sector mediation, or any of a host of different ADR approaches, such as binding arbitration, so-called med/arb (mediation, followed by binding arbitration), a mini-trial, or whatever the parties might jointly consent to. Public reports indicate that the dissenting senior judges are continuing with their traditional approach, and that some other district judges have granted requests for settlement conferences since the revision was implemented in December. Nonetheless, given the new approach, it seems likely that at least a few hundred cases each year will no longer receive free settlement help from the District Court.

There were approximately 700 settlement conferences convened in the District last year. Some 25% involved employment and ERISA disputes, 10% involved personal injury matters, and single-digit percentages were taken up by, in order, contract disputes, civil rights complaints, fair debt collection work, insurance disputes, intellectual property cases, and business and product liability matters. (Notably, the vast majority of these cases settled for less than anticipated defense costs through trial).

How will these now be handled? Although the D. Colo. clerk of the court is designated to “implement, administer, oversee, and evaluate” the court’s ADR program (Rule 16.6 D), the court has quite purposefully chosen not to assemble a referral roster of potential neutrals, as it does not wish to provide an imprimatur for any private person or group. It will thus be left to the ADR professionals in the district to help litigants make their way in the new paradigm.

It is worth noting that this new approach is the way that many federal districts already operate. For those raised in this district court, it might have been assumed that all 94 districts have magistrate judge settlement conferences, but that is not the case. For instance, the Utah federal court refers out its settlement cases, as does the Southern District of Florida, for the most part.

It is possible that the district court or the ADR-designee clerk of the court might later choose to establish a more formal program, or at least a roster of eligible neutrals. The Alternative Design Resolution Act of 1998, 28 U.S.C. § 651, found that “alternative dispute resolution, when supported by the bench and bar, and utilizing properly trained neutrals in a program adequately administered by the court, has the potential to provide a variety of benefits . . . .” The Act provides that the district designee, who should be knowledgeable in ADR practices and processes, “may also be responsible for recruiting, screening, and training attorneys to serve as neutrals and arbitrators” in the court’s ADR program.

Although the private sector ADR community in Colorado is very active (the Dispute Resolution section of the CBA has over 250 members), there are only a few seasoned veterans of this District Court who are serving as neutrals locally, mainly former magistrate judges and senior federal litigators. There is no formal “federal neutral” roster, and the FFA and other similar groups may wish to establish some training programs and eligibility rosters to help fill this gap. As Vice-Chair of the DR section of the CBA, I will personally be contacting the Federal Judicial Center and the Administrative Office of the U.S. Courts to find out what assistance they may make available pursuant to the Act.

Revised Rule:

D.C.COLO.LCivR 16.6 – ALTERNATIVE DISPUTE RESOLUTION

A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. A district judge or a magistrate judge exercising consent jurisdiction may direct the parties to a suit to engage in an early neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Redline Edits:

D.C.COLO.LCivR 16.6 – A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. At any stage of the proceedings, on a A district judge’s initiative or [sic – or] a magistrate judge exercising consent jurisdiction pursuant to motion or stipulation of counsel or the pro se parties, a district judge may direct the parties to a suit to engage in an early settlement conference neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause. Unless otherwise ordered by a judicial officer, cases exempt from this rule are:

1. those in which the plaintiff is a prisoner proceeding pro se; and

2. habeas corpus actions.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Greg Whitehair, Esq., is a nationally certified mediator and arbitrator and Vice-Chair of the Dispute Resolution Section of the Colorado Bar Association. He is in the process of creating the website www.DColoADR.com to keep track of developments in the Colorado federal ADR community. He also owns IP Resolution Co. LLC, a national ADR consultancy specializing in intellectual property and high-tech commercial disputes. He can be contacted at jgw@ipresolutionco.com.
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State Judicial Issues New Form to Request Reduced Payment for Dispute Resolution Services

September 6, 2011 by Leave a Comment

The Colorado State Judicial Branch has issued a new form that allows a party to request a reduced payment for services provided by the Office of Dispute Resolution. Practitioners should begin using the new form immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download the new forms from State Judicial’s individual forms pages, or below.

Filing Fees

  • JDF 211 – “Request To Reduce Payment for ODR Services and Supporting Financial Affidavit” (8/11)
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Bilingual? Want to Be a Mediator? Scholarships Are Available

September 2, 2011 by Leave a Comment

The Office of Dispute Resolution is offering a limited number of scholarships to Judy Mares-Dixon’s Mediation Training in Westminster, which is being held October 3 – 7, 2011.

These scholarships are for bilingual individuals living anywhere in the state of Colorado. Preference will be given to individuals who have some knowledge and familiarity with family law, the court system, and an interest in working as court mediators. To apply for a scholarship, please send a current resume or CV, along with a one-paragraph statement indicating your interest in mediation services, to  holly.panetta@judicial.state.co.us.  For more information please email or call Holly at (303) 837-3609.

Please see the attached brochure for an overview of the training.

Scholarship Brochure 2011

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Office of Dispute Resolution Opens Statewide Application Period for Contract Mediators

April 4, 2011 by Leave a Comment

The Office of Dispute Resolution (ODR) in the State Court Administrator’s Office has opened a statewide application period for new and renewing contract mediators. Applications are available on the ODR website and will be accepted through April 25, 2011.

Previously, applications for contract mediators were accepted on an as-needed basis. The change to an application period instead is part of an ongoing reorganization and is necessary to help the office measure the effectiveness of its dispute resolution programs. It also brings the ODR’s contract process in line with similar contracting processes implemented by other agencies within the Colorado Judicial Department.

As part of the change, ODR is developing a central online database where contract mediators will enter demographic and outcome information for every case handled by the office.

ODR was created by the Colorado Dispute Resolution Act in 1983. The office’s mission is to establish or make available dispute resolution programs and related services throughout the state, as designated by the chief justice of the Colorado Supreme Court.

For more information, visit the ODR website or contact Bill Delisio, ODR Acting Director, or Holly Panetta, ODR Project Manager, at (303) 861-1111.

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Excerpt: Trial Preparation in Domestic Cases

March 4, 2011 by 1 Comment

Last week, CBA-CLE held its popular Family Law Basic Skills program. The full-day event is held once every two years, and highlights all the practical, foundational skills every attorney needs to build a successful family law practice. This year, an extensive array of topics were covered, including:

  • Client Intake
  • Jurisdiction
  • Protective Orders
  • Custody/Parenting Time
  • Disclosures/Discovery
  • Mediation
  • Child Support/Maintenance
  • Separation Agreements
  • Taxation
  • Trial Preparation

The Trial Preparation section was presented by Diane M. Carlton, Esq., who provided an overview of the process for domestic case preparation, including the issues to expect and checklists to be aware of when proceeding to trial. CBA-CLE and Legal Connection are now sharing this section of the program with readers, below.

Did you miss the class? It’s available as a homestudy in three formats: video on-demand, audio CD, and mp3 download. The full set of course materials are also available or may be downloaded. Additionally, video replays will be held on Thursday, March 10, 2011.

Family Law Basic Skills: Trial Preparation

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Colorado Court of Appeals: Agreement to Pay Half of Mediator’s Fees Precluded Court from Awarding Fees as Costs

January 10, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Valentine v. Mountain States Mutual Casualty Company on January 6, 2011.

Costs, Fees, and Expenses.

Plaintiffs (collectively, Valentines) appealed the district court’s order awarding costs to defendant Mountain States Mutual Casualty Company (Mountain States). The order was affirmed in part, vacated in part, and reversed in part, and the case was remanded for additional findings.

The Valentines contended that the district court abused its discretion by awarding all of Mountain States’ requested costs for transcripts of discovery depositions ($27,157.98). Mountain States hired an attorney to assess the reasonableness of these costs. The Valentines submitted no rebuttal evidence. Therefore, the district court had sufficient evidence to make a reasoned decision about the reasonable necessity of the depositions and did not abuse its discretion in awarding the transcript costs.

The Valentines also contended that the district court abused its discretion by awarding all of Mountain States’ requested expert witness costs. Mountain States offered sufficient evidence to show the reasonableness and necessity of the expert witnesses’ fees and travel costs. The Court of Appeals therefore determined that the trial court did not abuse its discretion in awarding these costs.

The Valentines argued that the district court abused its discretion in awarding all of Mountain States’ requested in-house photocopying expenses ($22,991.40). Mountain States offered no evidence supporting the reasonableness or necessity of making such a large number of photocopies in-house, and there was evidence that outside vendors charged Mountain States 5.5¢ per page, on average. The Court ruled here that the district court abused its discretion in awarding the full in-house photocopying expenses, and that portion of its award was reversed.

The Valentines contended that the district court abused its discretion in awarding all of the costs billed by the mediator and the special master. The Court ruled that the district court abused its discretion in awarding these costs because Mountain States’ agreement to pay half of the mediator’s and special master’s fees, as well as all of the special master’s out-of-state deposition fees, precluded the court from awarding these fees as costs.

The Valentines contended that the court abused its discretion in awarding counsel’s expenses for mileage, meals, airfare, computerized research expenses, and costs for Mountain States’ payment of an outside vendor for trial technical support. Mountain States did not supply a sufficient description or calculation for the mileage charged, nor did it provide any supporting invoices or documentation. Further, costs of counsel’s meals are not awardable because they are not attributable to the litigation; counsel would need to eat regardless of any litigation. Consequently, the district court abused its discretion in awarding the mileage and meals expenses. The district court did not abuse its discretion in awarding Mountain States’ counsel’s deposition-related airfare, computerized research expenses, or the cost for an outside vendor for trial technical support, because these costs were reasonable and necessarily incurred.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 6, 2011, can be found here.

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Colorado Office of Dispute Resolution Revises Indigent Services Allocation Policy

June 30, 2010 by Leave a Comment

Beginning July 1, the Office of Dispute Resolution (ODR) will fund mediation and other alternative dispute resolution (ADR) services for Colorado’s indigent population based on a proportionate allocation formula, State Judicial announced today.

Low- and no-cost mediation services will be granted to each of Colorado’s 22 judicial districts in proportion to each district’s percentage of residents meeting the federal poverty threshold. According to a press release issued today by State Judicial, recent Census data revealed that more than a half-million Coloradans live at the federal poverty level. The federal poverty level for one person in 2010 is $10,830 per year, or $902.50 per month.

Deputy State Court Administrator Carol Haller said of the change:

We want to provide access to services across the state in an equitable manner. Because our indigent funds are limited, tying each judicial district’s ODR allocation to its indigent population is the most sensible approach to take.

ODR also offers mediation and other ADR services at affordable rates (but not state funded) to Colorado residents who are not in financial need.

(image source: State Judicial)
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