Making ADR work: the cost effective resolution of corporate dispute
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In 1977, while still in private practice, my ENDISPUTE colleague, Eric Green, and I helped to design and participated as advocates in what we called an “Information Exchange,” in a successful effort to settle a major patent infringement lawsuit between TRW and Telecredit. In August, 1978, after I made a presentation about the “TRW-Telecredit Information Exchange” at the ABA convention, a New York Times story reported on my talk under the headline, “Minitrial Settles Corporate Dispute.” Thus, the name, “Minitrial,” was born and the use of alternative dispute resolution, or “ADR,” to settle a major corporate dispute got its first major public exposure. Since 1978, and particularly in the last 5 years, there has been an explosion of interest in and the use of innovative approaches to resolving disputes. Still, many corporate managers and lawyers have not had experience in using mediation, minitrials and other ADR techniques to resolve complex disputes, thus avoiding litigation or ending it quickly. This article is distilled from Eric’s and my experience, as well as that of ENDISPUTE’s other staff, in resolving corporate, commercial, environmental, tort and public policy disputes over the past decade. During that period of time, ENDISPUTE has been involved in helping parties design and implement innovative approaches to resolving several hundred disputes, with dollar stakes ranging from hundreds of thousands to hundreds of millions. The primary focus of this article is on disputes which, if not settled, will be resolved through litigation. Its aim is a very practical one–to provide a framework for business executives and practicing lawyers to think about whether and how particular disputes can be resolved more cost-effectively. It seeks to do that by providing, in outline form, a systematic way of deciding whether a dispute has ADR potential and which ADR process is best. Alternative Dispute Resolution–or ADR–processes are those other than the most-used primary processes of adjudication and direct negotiation. They seek to avoid the uncertainty, unpredictability, delay, and high transaction costs which are key problems of traditional litigation. ADR processes can be non-binding or binding. They usually involve a neutral. Some ADR processes–such as mediation and the minitrial–are non-binding. They facilitate settlement by modifying the negotiation process to increase the likelihood of agreement. A mediator, for example, may assist negotiators by calming the emotionalism surrounding a dispute. A minitrial’s neutral advisor provides a non-binding opinion about the legal and practical strengths and weaknesses of the parties’ cases, and thus often helps break a negotiation impasse stemming from different views of likely in-court outcome. Other ADR processes–such as arbitration–are binding. Arbitration often can provide a faster and less expensive decision resolving a dispute which would be obtained through traditional in-court adjudicatory processes. ADR processes can be implemented by an ad hoc arrangement of the parties or through an established forum. The parties to a dispute can agree through an ad hoc arrangement to conduct a minitrial, retain a mediator, or hire a former judge to conduct a private settlement conference. ADR processes Source : accessmylibrary.com |