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Efficient Alternatives to Litigation for Dispute Resolution

Explore alternative dispute resolution (ADR) methods such as negotiation, mediation, and arbitration to efficiently resolve disputes, reducing costs and time. Learn about online dispute resolution (ODR) and international dispute resolution.

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Efficient Alternatives to Litigation for Dispute Resolution

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  1. Chapter 3: Alternative andOnline Dispute Resolution

  2. §1: Search for Alternatives to Litigation • Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve. • There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.

  3. ADR • ADR describes any procedure or device for resolving disputes other than the traditional judicial process. • Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets. • Most common: negotiation, mediation, arbitration.

  4. §2: Negotiation and Mediation • Less than 10% of cases reach trial. • Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case. • Successful negotiation involves thorough preparation, from a position of strength.

  5. Assisted Negotiation • Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3rd party (e.g., a retired judge) who renders a non-binding “verdict.” This facilitates further discussion and settlement. • Expert evaluations. • Conciliation: 3rd party assists in reconciling differences.

  6. Mediation • Involves a neutral 3rd party (mediator). • Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.” • Advantages: few rules, customize process, parties control results (win-win). • Disadvantages: mediator fees, no sanctions or deadlines.

  7. § 3: Arbitration • Many labor contracts have binding arbitration clauses. • Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official.

  8. Federal Arbitration Act • Provides for means of enforcing the arbitration procedures established by the parties. • Section 4: federal court can enforce arbitration clause. • Section 9: arbitrator’s decision confirmed in federal court. • Case 3.1 Buckeye Check Cashing, Inc. v. Cardegna (2006).

  9. Arbitration Process • Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award. • Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.

  10. Enforcement of Agreements to Submit to Arbitration • Arbitrability: whether the issue must be resolved with arbitration. • Case 3.2 NCR Corp. v. Korola Associates, Ltd. (2008). • Mandatory arbitration in employment. • Case 3.3 Morrison v. Circuit City Stores, Inc. (2003).

  11. Setting Aside an Arbitration Award • Loosing party may appeal the decision to a court. • Winning party may ask a court to enforce the award. • Court’s role is limited to determining whether a valid award exists • Facts and legal conclusions are usually final.

  12. Setting Aside an Award • Award result of fraud or corruption. • Arbitrator bias. • Arbitrator abuse of discretion. • Arbitrator exceeded powers.

  13. Disadvantages of Arbitration • Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence. • Arbitrators do not have to issue written opinions. • Generally, no discovery available.

  14. § 4: Integration of ADR and Formal Court Procedures • Many states require some ADR before trial. • Court-annexed Arbitration. • Finality of awards. • Role of the Arbitrator. • Waiver and Choice of Rules. • Court-Related Mediation. • Summary Jury Trials.

  15. § 5: ADR Forums and Services • Non-profit organizations: • American Arbitration Association. • Better Business Bureau. • For-Profit Organizations: • JAMS-ADR.com (Flash enabled).

  16. § 6: Online Dispute Resolution • Also called ODR. • Uses the Internet to resolve disputes. • Still in its infancy but is gaining momentum. • See, e.g.,www.cybersettle.com . • Arbitration Programs. • ICANN to resolved domain name disputes.

  17. § 7: International Dispute Resolution • Forum Selection and Choice-of-Law clauses in contracts govern the transaction. • Arbitration clauses are generally incorporated into international contracts.

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