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June 28, 2010
The Blob: So when and how can we make ADR work?
It's clear that globally, and in the U.S., arbitration, mediation and "ADR" have defeated the goals of Faster, Cheaper, Better. See, e.g., ABA Journal (April 2010) "International Arbitration Loses Its Grip". Anyone got any ideas on how to fix it? We need a system that works for clients--we already know it "works" for outside law firms--in business-to-business disputes.
Arbitration and Mediation: Did they get as bad as the disease?
Posted by JD Hull at June 28, 2010 01:27 PM
Comments
ADR is something that is really only worth pursuing by parties that actually have a sincere desire to resolve the dispute fairly.
And this does actually happen and I have seen it happen.
However, Arbitration and Mediation are not really worth pursuing if the parties do not have a relationship that they care about and want to preserve-- they are really better off litigating in a clear and defined system.
I often see mediations being used to waste time or as a ploy to get information, tie up resources, etc. This is especially the case when members within the parties have emotional or values stakes in the dispute.
The goals of Faster, Cheaper, and Better need to be shared with a sincere desire to resolve the matter fairly.
Posted by: Ambitious at June 29, 2010 12:04 AM
We do like real names--but Ambitious will do for now. We'll give you a pass on this comment as you seem like you've "been there"....
Thanks for your comment; a "clear and defined system" grabbed us.
What if all biz-to-biz mediation and arbitration was both (1) tried and (2) heard by third-party in-house neutrals? In other words, as a general rule, LEAVE OUTSIDE law firms OUT of it--since we have abused the ADR ethos. (And we have.)
An in-house rep (not necessarily a lawyer) would "try" the case from each side. Arbitrators and mediators would be from pools put together by people in a "like" industry--and also would be from in-house? "Learning time" would be eliminated along with outside firm churning.
Outside law firms could be used--but rarely and in special circumstances (i.e., drain on company time and resources relative to fees to outside firm).
Then couple the whole thing with accelerated CPR-type rules developed by industry last year?
http://www.cpradr.org/ClausesRules/GlobalArbitrationRules/tabid/422/Default.aspx
Posted by: Hull at June 29, 2010 01:02 AM