Alternative Dispute Resolution

AuthorHon. Steven Platt (Ret.) and Daniel P. Carter
The decision to employ ADR and even the choice of which ADR technique
to employ has often been made before a client comes to you with a business
problem. Parties frequently include dispute resolution clauses in commercial
documents in anticipation that problems may arise in the transaction. In a
perfect world, you would have drafted that clause, and you would know
what to expect and how to proceed. However, parties will often include a
“form” dispute resolution clause or one that they have prepared themselves
without the assistance of counsel or a full understanding of the ramica-
tions of the clause. Thus, in many situations, the parties are bound by and
are often surprised by the parameters of the dispute resolution clause con-
tained in their contract.
Business tort cases arise in many contexts that are neither anticipated
nor governed by a dispute resolution clause in a contract. Examples include
claims of fraud, intentional interference with business relations, malicious
abuse of civil process, and unreasonable use of land cases including nuisance
actions, product liability cases, professional liability, breach of duciary duty,
and bad faith claims. These claims and the defenses to them each carry a
unique potential for their own narrative that can develop into drama in the
Alternative Dispute
Hon. Steven Platt (Ret.)
Daniel P. Carter
Nelson_BizTorts_20140514_15-35 Confirmation Pass.indd 19 8/12/14 10:25 AM
hands of capable litigators, parties, and witnesses in a forum that favors
such a presentation. Therefore, if you have a choice of dispute resolution
mechanisms, it is key to keep in mind how your client and any witnesses
are likely to present before different types of audiences. Will they naturally
make a good impression on a judge or jury? If not, then an arbitration or
mediation may be the better choice as it is easier to guide clients and wit-
nesses in the more intimate and less formal ADR setting than in a courtroom.
Mediation is very different from litigation, arbitration, neutral case eval-
uation, and even settlement conferencing. The textbook denition of
“mediation” is “a process in which the parties work with one or more
impartial mediators, who without providing legal advice, assist the parties
in reaching their own voluntary agreement for the resolution of all or part
of a dispute.”
That is different from a “settlement conference” where “the
parties, their attorneys or both appear before an impartial individual to
discuss the issues and positions of the parties in an attempt to agree on a
resolution of all or part of the dispute without a trial.2 Unlike a “pure facili-
tative mediation,” a settlement conference may, and usually does, include
neutral case evaluation and sometimes the impartial individual may recom-
mend the terms of agreement.
The principal difference between a purely facilitative mediation and a
mediation in which an impartial individual provides a neutral case evalu-
ation and in many cases suggests possible resolution of the case or dispute
lies in the role of the mediator or settlement conference ofcer. As you can
surmise, the evaluative mediator plays an enhanced role similar to a settle-
ment conference ofcer and is more aggressively involved in the substance
of the attempt to resolve the dispute and the terms thereof, whereas the
1. Md. R. Proc. 17-102(g) (Denitions). See also Ariz. R. Proc. 17B A.R.S./Rule 66(4);
Cal. R. Proc. 3.800(2); C. R. S. A. §13-22-302(2.4); F. S. A. §44.1011(2);
Minn. Gen. R. Practice 114.02(7); N.C. Sup. Ct. R. Proc. 11(b)(2);. V .S. A. tit. 12,
2. Md. R. Proc. 17-102(1) (Denitions). See also Ariz. R. Proc. 17B A.R.S. Rule 66(6);
Cal. R. Proc. 3.1380; C. R. S. A. §13-22-302(7); Minn. Gen. R. Proc. 114.02(6);
N.C. Sup. Ct. Proc. 11(b)(1); V. S. A. tit. 12, §571.
B  T: A P  G  L 
Nelson_BizTorts_20140514_15-35 Confirmation Pass.indd 20 8/12/14 10:25 AM

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