Alternative Dispute Resolution

• Author: Hon. Steven Platt (Ret.) and Daniel P. Carter
• Pages: 19-36

THE DECISION TO EMPLOY ADR

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

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CHAPTER 2

Alternative Dispute

Resolution

Hon. Steven Platt (Ret.)

and

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.

I. ADR TECHNIQUES

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.”

1

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,

§57B(2)

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 

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