In contrast, companies that let old litigious habits worm their way into the process might as well go back to court. Moreover, the reduction in outside fees has not increased the costs of in-house counsel. NCR manages its filed cases with only four in-house lawyers and four paralegals.
Several years ago, in a case in which it did not have an arbitration clause, NCR spent hundreds of thousands of dollars defending itself in a conventional lawsuit and nevertheless lost a multimillion-dollar jury verdict. In the past five years, NCR has paid out less in awards and settlements—and in outside and in-house counsel fees for all of its ADR matters—than the outlays for that single case.
Consider the following sad but true story of two large electronics manufacturers—both, ironically, subscribers to the Center for Public Resources policy statement. We recognize that for many business disputes there is a less expensive, more effective method of resolution than the traditional lawsuit.
Alternative dispute resolution ADR procedures involve collaborative techniques which can often spare businesses the high costs of litigation.
In recognition of the foregoing, we subscribe to the following statement of principle on behalf of our company and its domestic subsidiaries:. In the event of a business dispute between our company and another company which has made or will make a similar statement, we are prepared to explore with that party resolution of the dispute through negotiation or ADR techniques before pursuing full-scale litigation.
If either party believes that the dispute is not suitable for ADR techniques, or if such techniques do not produce results satisfactory to the disputants, either party may proceed with litigation. About 15 years ago, Company A, which makes computer-support products, licensed Company B to manufacture a new device. The arrangement was a means of expanding the market by offering a second source of the product. The device was wildly successful, but by the mids, Company A had developed its technology and improved the device, and it refused to let Company B manufacture the new design.
Fearing it would lose a lucrative market, Company B threatened a lawsuit, and when the threat had no effect, it reverse engineered the new device and began to manufacture and market its own version. Instead of litigating, however, the companies respected a clause in their contract and headed into arbitration. Under normal circumstances, arbitration might take anywhere from 6 to 12 weeks, but in this case it ballooned into a five-year marathon, with five to six hours of testimony four or five days every single week.
While the proceeding followed the customary rules of arbitration—in theory, extremely limited discovery and depositions—the judge in the case skirted convention by subpoenaing evidence, so that much of the time was actually spent in discovery nevertheless. In addition, lawyers on both sides began taking depositions, though they were careful not to use that word. ADR procedures fall into two general categories.
The first, arbitration, most resembles litigation. The second category consists of various forms of negotiation, including mediation, settlement conferences, summary jury trials, and minitrials. Procedures similar to those in a regular trial replace the binding decision of a judge or jury with that of another third party, such as an arbitrator, referee, or private judge.
Often parties have a clause in their contract committing them to arbitration of disputes arising from their business together. Typically, they adopt procedures recommended by the American Arbitration Association.
Settlement Conference. Sometimes a preliminary meeting of the parties can settle differences early on. Disputants themselves often initiate such a conference, or counsel or outside consultants bring the parties together. Usually, each side is represented by an executive with decision-making authority but no previous connection with the project. Whereas arbitration imposes solutions, mediation helps parties resolve their own disputes. Mediators can play many roles: getting participants to talk to each other, setting the agenda, helping disputants understand their problems, and suggesting possible solutions.
Summary Jury Trial. Litigants are often unable to settle their disputes quickly because they have very different expectations of how a jury will view their claims. An SJT gives them a nonbinding indication of how their claims might actually be received.
Opposing lawyers select a small jury, a judge gives preliminary instructions on the law, and everything proceeds just as in a real trial, but with a limited number of witnesses and a restricted time frame for each party. The disputants usually initiate this procedure themselves, and formats vary. Typically, minitrials involve one high-level executive from each side someone not previously involved with the issue and one neutral adviser. They also agree on format, timing, and procedures.
During the minitrial, each side has an allotted time to present its case, and attendees can comment and ask questions. Afterward, the executives may be able to settle the dispute on their own, or they may turn to the neutral person for advice. The whole process usually takes from one to four days. Eventually, the judge ruled against Company A, which promptly asked an appeals court to overturn the decision.
After that, both companies began to litigate in earnest. They are still fighting today, and the list of suits and countersuits grows longer every year. This depressing account graphically illustrates how an alternative method of dispute resolution can go wrong when the parties lack the commitment to make it work.
Ingrained attitudes and belligerent corporate cultures worked against an equitable, agreeable outcome. In this case and in others we have seen, the chief obstacles were one or more of the following attitudes. Few senior corporate managers are willing to forgo a chance to win a courtroom triumph.
Under these circumstances, common sense urges negotiation to limit the extent of the claims. But when the company appears to be in the right, when millions in revenues are at stake, and when decision makers ache to go to the mat to prove their point, arguing for arbitration may strike some as foolish, if not downright disloyal.
Most lawyers—and hence the companies they serve—still view ADR as the alternative rather than the primary or preferred method of settling disputes. Mediation can be the quickest and cheapest option. The parties work with a mediator who tries to help them reach an agreement. Mediation can only be used if both sides agree - the outcome is not binding. Mediation services are typically provided by experts. Arbitration instead involves each side presenting their case to an expert arbitrator who then makes a decision on how to resolve it.
While arbitration tends to be more expensive and confrontational, it does allow for a definite resolution as the arbitrator's decision generally has to be accepted by all parties, hence the use of the term 'binding arbitration'. In the construction industry, however, disputes are generally handled using a less formal adjudication procedure. Often the parties to a contract will be required to undertake the dispute resolution process before starting court action.
However, there are some things you need to know about these superstar clauses for them to be effective. The process set out in the dispute resolution clause must be clear and certain. For an agreement to be enforceable, all of the essential terms of the agreement must be sufficiently defined and certain. Do you know that we have a wide range of business, employment and leasing contract templates that you can use to drastically cut your legal fees?
See them at www. Alternative dispute resolution services play a very important role in the broader dispute resolution environment in New Zealand. One of our major aims is to achieve better coordination and greater consistency in dispute resolution approaches. Dispute resolution is being used in many aspects of New Zealand life with at least 55 different dispute resolution schemes or procedures that we have identified.
These cover areas as diverse as consumer protection, employment, property and building, occupational regulation and human rights. Dispute resolution is being used in many aspects of New Zealand life with at least 55 different dispute resolution procedures that we have identified. These cover areas as diverse as consumer protection, employment, property and building, occupational regultion and human rights.
There are also more than 50 public accountability agencies that are partly or wholly focused on complaints to or about government. There are 2 professional membership associations specifically for dispute resolution practitioners:. Government Centre for Dispute Resolution Who we are. On this page. What is dispute resolution?
0コメント