What is “ADR”?
“ADR” is an abbreviation for Alternative Dispute Resolution. Courts resolve disputes in which lawsuits have been filed. This process is called “litigation”. Litigation can be very expensive and take a long time to complete. To better serve the public, many courts have introduced alternatives to litigation. Some alternatives to litigation are settlement conferences and mediation; some courts also offer other forms and processes, such as arbitration, for resolving disputes and managing conflict between people.
What is a settlement conference?
A settlement conference occurs when a case is already in litigation, that is, when a lawsuit has already been filed. All the parties and their attorneys, if any, sit down with a neutral third party, the settlement facilitator, to try to work out a settlement on their own. Faster settlement of the case without the time and expense of going to trial is the primary goal.
What is a settlement facilitator?
The settlement facilitator is a neutral third party whose only job is to help the parties resolve their differences. The settlement facilitator is expected to be able to help each party evaluate their own and the other party’s cases. This is why the Court’s ADR Program requires that all the settlement facilitators on its list be licensed attorneys with at least 5 years of subject matter experience who also have training and experience in mediation techniques. The settlement facilitator is not on anyone’s “side”. Settlement facilitators do not represent or give legal advice to either party. Settlement facilitators do not make decisions for you. The settlement facilitator can be very active in suggesting ways to resolve the lawsuit and in persuading each party to compromise for settlement.
Does the settlement facilitator have to be an attorney?
If the parties choose the settlement facilitator, he or she can be anyone the parties believe can help them come to an agreement. It doesn’t have to be a lawyer, and it doesn’t have to be someone on the Court’s list.
Only attorneys who have mediation training and have met the Court’s standards are on the Court’s list.
What’s the difference between “Mediation” and “Settlement Conferences”?
Settlement conferences and mediation are both processes which use an impartial third party – the “neutral” - to facilitate discussion between the parties, but the timing of the process and role of the neutral in each process is somewhat different.
Settlement conferences occur when a lawsuit has already been filed. They are an attempt for the parties to settle the case instead of having the judge decide it. Settlement facilitators, because of their legal training, can help each party evaluate the strengths and weaknesses of their own and the other side’s legal case. They may take a more active role than mediators in encouraging both sides to come up with possible solutions.
In contrast, mediation may occur before a lawsuit is filed; it is often used in an attempt to avoid litigation. It may also be used in cases that have already been filed. New Mexico courts offer mediation in cases where the parties cannot agree on child custody. Mediations are conducted by trained, experienced mediators who may also, but are not required to, be attorneys. The mediator’s role is to help the parties talk to each other to help them resolve their dispute. A non-lawyer mediator is not qualified to, and should never offer evaluation of the relative strengths and weaknesses of each party’s legal case.
“Settlement facilitators” conduct settlement conferences.
“Mediators” conduct mediations.
Neutrals, whether they are settlement facilitators or mediators, never represent any party in any case in which they are the facilitator, do not decide how the case will be resolved, and they should never give legal advice to either party.
What kind of ADR services does the Court offer?
Family Court Services offers mediation and evaluation (consultation) services for child custody issues only.
Court Constituent Services offers settlement facilitation in civil (CV), domestic (DM), probate (PB), and foreclosure (FRC) cases.
How does my case get referred to a settlement conference?
Any party (you or the other side) can file a Request for Referral to Settlement Conference. Judges may also refer cases to settlement conferences, with or without the request of the parties. Follow the directions in this page “How to Request A Settlement Conference”.
Where do I get the forms?
You can get all the forms from the Court’s website: "Forms" or from the Self Help Center on the ground floor of the Courthouse. Use the Court’s forms! The Self Help Center’s phone number is 505-455-8146; the email address is email@example.com.
How do I file a request for referral?
Follow the directions in: “How To Request A Settlement Conference”. Use the Court’s forms!
How is the settlement facilitator chosen?
The parties may choose the settlement facilitator, if you can agree on one person. If you agree on a settlement facilitator, you should file a Stipulated Request for Referral to Settlement Conference using the Court’s form.
If the parties can’t agree on a settlement facilitator, Court Constituent Services will assign someone from the court’s list of lawyers who are qualified settlement facilitators. The settlement facilitator’s areas of expertise is matched with the type of case to make sure the settlement facilitator has the experience and background to understand the legal issues in the case and help the parties come to an agreement.
What if the settlement facilitator has a conflict, or one of the parties doesn’t want him/her to serve for any reason?
Any party or the settlement facilitator may file a Request for Replacement of Settlement Facilitator. Use the Court’s form! No explanation for the request needs to be given. The Court will appoint a different settlement facilitator. If both parties agree on a replacement settlement facilitator, they should file a Stipulated Request for Replacement of Settlement Facilitator.
How much will it cost?
If the Court assigns the settlement facilitator, the fee schedule set by the Court is $500 plus Gross Receipts Tax for 4 hours. If you haven’t reached a settlement at the end of 4 hours and want to continue, the fee is $150 plus Gross Receipts Tax per hour for the next 4 hours. If you need more time than that, the settlement facilitator is paid at the rate agreed to in writing by the parties and the settlement facilitator before the conference begins.
Only settlement facilitators who are on the Court’s list are obligated to accept the Court’s fee schedule.
If the parties choose a settlement facilitator who is not on the Court’s list, they can make their own payment arrangements with him or her, paying more or less than the Court’s fee schedule provides.
Usually, the settlement facilitator’s fee is split equally between the parties. Sometimes, however, parties agree or the Court orders that one party will pay more.
When do I have to pay?
You have to pay the settlement facilitator for the first 4 hours before the settlement conference starts, unless you have made other arrangements with the settlement facilitator beforehand. If you have made other arrangements, be sure you have those arrangements in writing before you start.
What if I can’t afford to pay my share?
You can file a Motion for Free or Reduced-Fee Settlement Facilitation. The Court will decide whether free or reduced-fee settlement facilitation is appropriate, and will issue an order stating how much you have to pay.
Who will be at the settlement conference?
The settlement facilitator, and all parties, their attorneys if they have any, and any other persons who have authority to settle the case such as insurance company representatives, finance or mortgage company representatives, or guardians ad litem.
Where will the settlement conference be held?
It could be at the settlement facilitator’s office, or at the office of one of the attorneys, or at the courthouse, or any other place that all parties and the settlement facilitator agree on.
How are the date and time for the settlement conference decided?
In CV and PB cases, all the people who are required to participate decide among themselves. If they can’t come to an agreement, the settlement facilitator decides.
In DM cases, the court sets the date and time of the settlement conference.
What happens during a settlement conference?
The settlement conference is an informal proceeding. That means that the rules are much more relaxed – basically, anyone can say anything as long as they’re polite and non-threatening. You’re there to try to figure out a way to resolve your case that everyone can live with. The settlement facilitator is a neutral third party whose job is to help everyone have their say, and search for mutually agreeable solutions. The settlement facilitator is not a judge, and will not make decisions for you.
Each settlement facilitator has his or her own style. Sometimes all the parties will be in the same room during most of the conference; sometimes they will start out together and then separate into different rooms with the settlement facilitator going back and forth between them; and occasionally they may never see each other and communicate only through the settlement facilitator. If you have strong feelings about either being together or being separate, be sure to let the settlement facilitator know.
Will I be expected to actively participate in the discussion during the settlement conference?
Yes. This is your case, and you will be affected more than anyone else by how it is resolved. If you and your attorney decide that you’d rather not talk much, you can, but no one, including your attorney, can finally decide for you if you are satisfied with any particular resolution.
Do I have to have an attorney to request or attend a settlement conference?
What if I don’t want to go to a settlement conference?
If the court orders it, it’s just like any other kind of court order: you have to do it, or tell the court why you couldn’t or wouldn’t and ask the court’s permission not to comply with the order. You must comply with the Referral Order – or any other Order – until the judge tells you that you don’t have to. If you refuse to follow the court’s order, and the judge thinks you didn’t have a good reason for it, you may be liable for “sanctions” for contempt of court. That means the court can fine you or even put you in jail.
If you do not want to participate in a settlement conference, you can file a Motion for Excusal from Settlement Conference in which you will tell the judge why you don’t want to participate. The other parties will have an opportunity to respond to your Motion. The judge may decide whether to excuse you from participation based on what you and the other parties said in your Motion and their response, or the judge may hold a hearing to get more information. Just because you file a Motion for Excusal from Settlement Conference doesn’t mean the judge will grant it!
Do I have to settle my case at the settlement conference?
No. Not every case can be settled. Even though you may be ordered to attend a settlement conference, you cannot be ordered to settle. If an agreement cannot be reached, your case will proceed to trial and the judge will decide it. You always have the right to have the judge make the decisions about how to resolve your case. You will not be penalized for not settling.
What if I have a complaint about the settlement facilitator’s conduct?
You should first address your concerns with the settlement facilitator in the hope that any misunderstandings can be resolved amicably. If you are not satisfied, you can file a complaint with the Court Constituent Services Division.