ADR the Business Lawyer: Help from the Judges’ Guide to ADR
As we all
know, alternative dispute resolution is increasingly emphasized in
litigation. When we think of ADR, we typically think of arbitration or
mediation. And rightfully so. But there are a number of additional ADR
methods available. With about 1.5% of civil cases in Michigan going to
verdict, with early ADR being emphasized in the business courts and
elsewhere, and with case evaluation playing less of a role in business
disputes, we as business attorneys and business litigators should be
aware of some of these ADR options. Indeed, transactional lawyers may
wish to discuss with their clients what, if any, ADR provisions should
be incorporated in the agreements they are drafting for their clients.
Below are some of the ADR options. These are more fully described in the Michigan Judges Guide to ADR Practice and Procedure.
Mediation (before or after litigation has commenced, or even while the
case is on appeal). This may or may not be done pursuant to MCR 2.410,
2.411, and 2.412. Typically, the mediator “facilitates” settlement
discussions among the parties. At some point (with the parties’
consent), the mediator may move into an “evaluative” mode. One example
is where the mediator provides a “mediator’s recommendation,” which the
parties may confidentially accept or reject.
- Non-binding mini-trial to the parties’ representatives.
- Non-binding mini-trial to a mock jury.
dispute resolution advisor. The dispute resolution advisor will work
with the parties to resolve issues that arise throughout the contract.
This is often used in construction contracts.
- Early neutral fact-finding (non-binding) by an agreed neutral.
- Early neutral evaluation (non-binding) by an agreed neutral.
involving experts. Here, experts may preside over an ADR event, or the
experts themselves may meet together to try to narrow the issues in
Med/Arb. If mediation fails to settle the case, the case proceeds to
arbitration. Depending on the parties’ agreement, the mediator may or
may not become the arbitrator.
Arb/Med. The parties arbitrate the case, and the arbitrator seals the
award. The arbitrator then serves as a mediator. The award is issued if
the parties cannot settle the case.
- Summary jury trial (with or without a high-low).
- Traditional arbitration.
Other resources include SCAO’s Office of Dispute Resolution.
Recent articles examining some of these alternatives include:
ADR Provisions in Business Agreements—So Many Choices—So Little Time by Cynthia E. Brazzil in the summer 2016 issue of the Michigan Business Law Journal, and Business Courts, Arbitration, and Pre-Suit Mediation: A Modest Proposal for the Strategic Resolution of Business Disputes by Hon. John C. Foster, Richard L. Hurford, and Douglas L. Toering in the fall 2015 issue of the Michigan Business Law Journal.
If you are
interested in ADR and Commercial Litigation, feel free to contact Jerome
(Jerry) Rock, who chairs the ADR Subcommittee of the Commercial
Douglas L. Toering
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