Business Law e-Newsletter
September 29, 2016

ADR the Business Lawyer:  Help from the Judges’ Guide to ADRD. Toering

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.

  1. 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.
  2. Non-binding mini-trial to the parties’ representatives.
  3. Non-binding mini-trial to a mock jury.
  4. Private 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.
  5. Early neutral fact-finding (non-binding) by an agreed neutral.
  6. Early neutral evaluation (non-binding) by an agreed neutral.
  7. ADR involving experts. Here, experts may preside over an ADR event, or the experts themselves may meet together to try to narrow the issues in dispute.
  8. 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.
  9. 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.
  10. Summary jury trial (with or without a high-low).
  11. 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 Litigation Committee.

Douglas L. Toering
(248) 457-9200

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