X. SETTLING YOUR CASE
A. Do some cases settle without going to trial?
Yes. Most cases settle without going to trial. You and the other side may agree to settle your case at any point. Settling the case allows the parties, not a judge, or a jury, to determine the outcome of the case.
You may be able to resolve your dispute without the need for a trial by using a form of "alternative dispute resolution" (ADR). ADR gives the parties a chance to meet with a neutral person in a less formal setting to discuss your case and try to work out a solution. The neutral person is a trained problem-solver who tries to help the parties come to a resolution. The neutral person may or may not be on the staff of the court. In some cases a fee will be charged. Information on "court-connected ADR" is available at the clerk's, register's or recorder's office.
Things to consider when settling your case:
- Do you have your facts and supporting evidence collected and well-organized so that you can argue your best case.
- Are you making promises you can keep? You could be found in contempt of court if you don't live up to your agreement.
- Does the agreement contain the complete understanding between you and the other party? You may not be able to come back to the court later and say that there were things that were left out that should have been in the agreement.
- Do you understand the terms of the settlement agreement?
- Are you feeling pressured to settle?
- Is the agreement fair?
If you and the other side reach an agreement, make sure you write down all of the details of the agreement before filing it with the clerk or register. Ask the clerk or register if anything else needs to be done.
B. What is alternative dispute resolution (ADR)?
Alternative dispute resolution (ADR) is a process in which a neutral person tries to help the parties settle their case. There are different types of ADR, including arbitration, mediation, case evaluation, conciliation, dispute intervention, early neutral evaluation, mini-trial, summary jury trial, or any combination of these. Sometimes ADR services are provided as a result of a referral by a court. In some cases, the parties are required to participate in ADR.
A court referral takes place whenever a judge or other court employee provides a party to a case with the name of one or more dispute resolution providers or directs a party to a particular dispute resolution provider. The Uniform Rules on Dispute Resolution regulate court-connected dispute resolution services. The rules are available on the Web at www.mass.gov/courts/admin/legal/newadrbook.pdf
C. Do I have to pay for alternative dispute resolution services?
Typically, yes. If you privately hire an individual or organization to provide dispute resolution services, there is a charge for those services. Some court-connected dispute resolution services are free because they are provided by court employees or by community mediation programs that support themselves through other sources.
D. Is court-connected dispute resolution a confidential process?
In general, yes. The rules that apply to court-connected dispute resolution services establish an ethical obligation that require neutrals to observe standards of confidentiality that are described in detail in the rules.
In some types of dispute resolution processes, the neutrals may communicate to the court a list of resolved and unresolved issues, and an assessment of whether a case will go to trial. Parties are informed in advance of these communications.
There are other laws that make mediation a confidential process under certain conditions. If confidentiality is an important consideration for you, you need to research the law and rules that apply to the type of process and ADR services that you will be using to see what level of confidentiality applies in your case. A guide to court-connected ADR services is available on the Web at www.mass.gov/courts/sjc/docs/ccadr06O1large.pdf
Arbitration is a process in which an impartial person who is not otherwise involved in the case hears from both parties and makes a binding or non-binding decision after hearing arguments and reviewing the evidence.
Case evaluation is a process in which the parties or their attorneys present a summary of their cases to a "neutral" who renders a non-binding opinion of the settlement value of the case or a non-binding prediction of the likely outcome if the case goes to trial.
Community mediation program is a non-profit, charitable program whose goal is to promote the use of mediation and other conflict resolution services by volunteers to resolve disputes that come to, or might otherwise come to, the courts.
Conciliation is a process in which a "neutral" assists parties to settle a case by clarifying the issues and assessing the strengths and weakness of each side of the case. If the case is not settled, the neutral explores the steps necessary to prepare the case for trial.
Court-connected dispute resolution services are dispute resolution services provided as the result of a referral by a court. "To refer" means to provide a party to a case with the name of one or more dispute resolution service providers or to direct a party to a particular dispute resolution service provider.
Dispute intervention is a process used in the Probate and Family Court and in the Housing Court in which a "neutral" identifies the areas of dispute between the parties, and assists in the resolution of differences.
Mediation is a voluntary, confidential process in which a "neutral" assists the parties in identifying and discussing issues of concern, exploring various solutions, and developing a settlement mutually acceptable to the both sides.
Neutral is an individual engaged as an impartial third party to provide dispute resolution services and includes but is not limited to a mediator, an arbitrator, a case evaluator, and a conciliator. "Neutral" also includes a master, clerk-magistrate, register, recorder, housing specialist, probation officer, or any other court employee when that individual is engaged or assigned to provide dispute resolution services.