One point we want to drive home with clients in this series about tiered dispute resolution clauses is that parties have the right and the need to find the right process choice. Not only do parties have options, but with good, creative advice from their lawyers, they can sometimes design the process so that it is tailored to their needs, bandwidth and the circumstances of the specific dispute.
Dispute resolution is a place where parties and lawyers have choices. You don’t have to litigate a case if it doesn’t warrant litigation, any more than you would choose surgery for a back problem that can be cured by chiropractor adjustments. You shouldn’t rush to hire a litigator and file a lawsuit with the court just because a good friend suggested that that was the way to go, or because that is what you see and hear on TV and in movies.
You don’t have to use arbitration just because you have heard that many boilerplate contracts include arbitration clauses. But if the situation calls for arbitration, the parties should dictate the scope of the arbitration and exactly how they want it to work: Whether it should be very streamlined or more involved; whether it should just be a single arbitrator or a panel of three arbitrators; whether it should allow for some discovery or not; whether there is even the need for a hearing or just a submission of briefs and supporting documents to the arbitrator.
If the parties decide they want to use mediation, it’s important to think about and decide when in the life of the dispute the mediation should be used – early in the dispute or later. Based on the issues, the facts, the parties and the circumstances, what style or type of mediation would work best? Do you need a mediator or a case evaluator who is also knowledgeable in that particular area of practice and can give the parties evaluative feedback about the issues, defenses, damages and how the case will likely get decided by a judge or jury? Or is this the kind of dispute that needs to allow the parties opportunities to be heard by each other, to get face to face and acknowledge each other’s interests. In that case, you’ll need the kind of mediator who will be more facilitative with the process to accommodate those needs the parties have.
Do you have some truly free thinking, entrepreneurial type clients in the dispute, requiring a process like Collaborative Law that lets the parties and lawyers get creative with their problem solving? Do you need a process that creates a container of safety and trust, allowing the parties to freely collaborate with each other to develop the kind of resolution that only they could come up with? Is preserving the relationship between the parties important? Do you need an approach that doesn’t have the cumbersome limitations of civil procedure? Is it important to have legal counsel trained in interest-based negotiation and to get neutral and independent expert advice, as part of the process? Are these the kinds of parties that don’t want to hand off the decision making to some third party, like an arbitrator, a judge or a jury? Is it important to keep the dispute and the process of resolution private and confidential? If most of the answers to the questions in this paragraph are “yes”, using Collaborative Law or a hybrid of it and other ADR approaches would achieve the best results.
There’s a lot to think about before selecting a dispute resolution process. It’s critical to choose – or design – the process that is best for your situation. That selection process starts with the drafting of your agreements and the inclusion of the kind of tiered resolution clause that will give the parties the freedom to resolve the dispute the best way possible.
In Simon Sinek’s outstanding book, Start with Why, there’s an insightful story about a visit by American carmakers to a Japanese car company’s assembly line. The Americans are surprised that there isn’t a place at the end of the line where workers make sure the doors fit perfectly (sometimes requiring the use of a rubber mallet to tap the edges of the door to make it fit right). The Japanese respond and explain simply: “We make sure it fits when we design it.” They engineered the outcome from the beginning, by intention and design.
When you use the same approach to resolving disputes, the result you want comes by design, rather than an unknown outcome that comes by default.