Contracts offer a lot of flexibility when it comes to resolving disputes and disagreements. This is a major benefit to having a contract in the first place—at the outset of an agreement you can limit the costs and burdens of any potential dispute by the simple expedient of forethought. In any union or deal disputes are going to happen. Alternative Dispute Resolution (ADR) allows you to handle these disputes without destroying your business relationships or emptying your wallet. It is therefore to your benefit to make sure ADR is a part of your agreement.
In the U.S. most ADR is regulated by the American Arbitration Association (AAA). This organization sets the guidelines and procedures that parties should follow when attempting to resolve a dispute through ADR. They also offer access to trained mediators and arbitrators who have experience with dispute resolution. There are different kinds of dispute resolution. The three most common are unofficial negotiations, mediation, and arbitration. Occasionally the media will use terms interchangeably. However, it is important to understand that each of these methods is distinct and unique. Below is an explanation of each and how they’re used in the dispute resolution process.
Informal negotiations are self-explanatory—the parties agree to negotiate a settlement informally and between themselves. There are no set guidelines or procedures. When the parties agree to first enter informal negotiations to settle a dispute they are basically agreeing to “talk it out.” The parties or the parties’ representatives will communicate their concerns about a potential dispute or breach and will attempt to reach a compromise. During this process a lot of information and admissions or denials of wrongdoing may come out, so it is important that both parties understand the need for confidentiality (a matter discussed at length here). Every letter or e-mail should contain a statement about confidentiality and both parties should make an effort to respect that confidentiality.
More importantly unofficial negotiations should be made in good faith. For unofficial negotiations to achieve anything the parties need to genuinely want to resolve the dispute professionally and responsibly, if not amicably. If the parties enter unofficial negotiations with the intent of overwhelming or attacking one another very little is going to be accomplished through this method; if anything it will cause more ill-will and harm than good.
If informal negotiations have reached a stalemate mediation may be appropriate. Generally when parties enter mediation they want to resolve the dispute in a manner that permits them to continue working together. The dispute usually hasn’t become totally adversarial and the stalemate is a result of an inability to find a fair compromise. If you submit to mediation through the AAA you will be assigned a neutral mediator (usually selected by the parties) who will work with you and the other party to find a fair compromise. However, unlike arbitration or litigation the mediator has no authority to bind the parties to any settlement. In mediation the decision to settle still rests with you. The mediator provides a neutral perspective and usually has experience in resolving similar disputes, so they know what may work best for both parties.
There is some process, preparation and procedure in mediation:
1) the parties must first mutually agree to submit the dispute to mediation with the AAA;
2) mediation is initiated when any party to the dispute makes a request for mediation with the AAA. Whoever makes the request is required to notify all other parties to the dispute. Furthermore, parties may have legal representation if they so choose;
3) The mediation selection process can be somewhat involved. The parties can go online and review the available mediator list, which includes mediator profiles. Hopefully, both parties will agree to the same mediator. If they can’t agree each party eliminates unacceptable candidates from the list, then each submits a list of the mediators they would accept in order of preference. Based on the lists of acceptable mediators the AAA will attempt to find a match acceptable to both parties, and the mediator will be invited to assist in the dispute;
4) The mediator performs a conflicts check to make sure he/she can meet the requirement of neutrality. It should be noted that if the mediator is an attorney, he or she also has a duty to disclose that they are not representing either party in the dispute as counsel;
5) The mediator then meets at a prearranged time with the parties to reach a settlement. If a settlement is reached, the parties sign a settlement agreement. If the parties are unable to resolve the dispute they move on to the next phase of dispute resolution.
As with informal negotiation it is important to mediate in good faith. It is also important to be respectful to the mediator and the other party despite opposing viewpoints. Maintaining civility is the purpose of ADR—you waste the mediator’s and the other party’s time when you use mediation sessions as an opportunity to blame, berate or argue.
Binding arbitration is the last resort before litigation, and is most often used as an alternative to litigation. Binding arbitration may be used at the point where the dispute has become adversarial and can no longer be resolved amicably, although that is by no means always the case. In arbitration the parties submit the dispute to one or more (usually up to three) impartial arbiters who resolve the dispute by rendering a final binding judgment (referred to as the Award) that binds both parties. While this sounds a bit like litigation it differs in many ways. The proceedings are more informal and the discovery and admissible evidence rules are substantially more lax. Motion practice is usually ignored. Most importantly, the parties can customize their own rules and procedures for the arbitration. This includes the method of choosing the arbiter, so it’s important to think this through when drafting your agreements. Fortunately, although an award granted through binding arbitration is enforceable in court, arbitration is by no means as painful or tedious as the litigation process.
Arbitration does follow some rules. For instance, one party cannot force the other party to arbitrate without a prior agreement. The disputed contract must contain an arbitration clause that refers to the specific AAA rules, and it must state that the parties agree that the award will be enforceable in any competent jurisdiction. Furthermore, you have to follow the appropriate guidelines for your dispute—not all AAA guidelines are the same, and the AAA has different guidelines for different kinds of disputes. If the dispute is commercial, you need to follow the commercial guidelines.
While by and large informal, arbitration procedure is more formal than mediation. The parties must attend both a preliminary hearing and a final hearing. Arbiters may require that necessary documents and evidence be submitted to the arbiter and to one another. It is usually recommended that the parties seek representation, and once again arbiters are bound by conditions of neutrality and no conflicts of interest may exist. If the arbiters are attorneys or judges they must disclose that they are legal professionals but do not represent any party in the dispute.
Alternative Dispute Resolution is a useful practice and one that many businesses swear by. It also demonstrates that litigation is almost always avoidable if the parties are willing enough—and you should always be willing enough.