There are times when you just don’t want to go to trial. Well, unless your masochistic or a vindictive jerk, you almost never want to go to trial. Trials are difficult. They cost a lot. They cause massive amounts of stress. They put everything else in the office on hold. And, oddly, from a business standpoint, they don’t bring in a lot of money. There is a reason only 2%-3% of cases go to trial.

Usually, you wrap up cases through informal negotiations or in mediation. (Our mediation success rate is around 80%.) Sometimes, even after hours and hours and negotiating, you just can’t quite resolve everything in mediation. We all dread those mediation in which everything is resolved except two or three relatively minor issues. It doesn’t make any sense to go to trial and spend all that money on such small-ball stuff, but you just can’t get to a full agreement. What to do?

Something I’ve done a few times is to agree to hold a hearing on the remaining disputed issues and then accept the commissioner’s recommendations regarding those issues. The recommendations then become part of the Findings of Fact and Conclusions of Law and the final Order. I usually title the subsequent motion “Motion for Additional Orders,” and I explain in the motion what exactly we’re doing so the commissioner knows what’s going on.

Here are some of the advantages of this hearing approach: (1) you get in to court for a hearing with the commissioner far faster than going to trial; (2) a proffer hearing is much easier to prepare for than trial; (3) a hearing with the commissioner takes far less time than a trial; (4) hearings are less stressful, for both clients and attorneys, than trial; (5) hearings are cheaper than trials.

There are a couple potential problems with the hearing-as-alternative-to-trial approach.

First, commissioners aren’t judges. They make decisions without all the information a trial would elicit. This means the hearing approach is better suited to issues that are not particularly difficult. Minor child support disagreements and disagreements about the right of first refusal or parental discipline are perfect examples of issues that can be addressed under the approach.

Second, if your issue is too complicated, the commissioner may punt on the issue and make you go to trial. I recently had this happen with Commissioner Casey in Farmington. The issue before him was relatively high dollar ($20,000+) and the stories were completely divergent. He told us he couldn’t make a solid decision based on proffer (credibility was a major issue), so we would need to take that issue to trial. On a side note: Dillon made recommendations on three other more minor issues; so, even in front of Dillon (a rules hawk) this approach can be used successfully.

So, while there is some risk a commissioner will make you go to trial on more complicated issues, the hearing alternative is a potential tool to help minimize costs and save time in those cases where a very few minor issues are standing between you and resolution of the case.

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