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August 2014 – Just Resolve provides businesses with fixed fee, neutral driven dispute resolution services that are more affordable and economically rational than litigation.

Should I Arbitrate?

This theme for this month’s Just Resolve newsletter is all about arbitration. Should you arbitrate your dispute or not? Will it cost less than litigation? Or will it cost more than litigation? Will it take more, or less, time than litigating a dispute in front of a judge or jury? The articles and blogs highlighted in our newsletter cover some of the reasons that might push you to arbitrate your dispute or not.

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“Our decision to include Just Resolve clauses in hundreds of customer contracts has made us a more attractive business partner, while contributing to an almost perfect record for resolving such customer disputes without costly litigation.”

Carol Meschter, CEO of Comparative Biosystems, Inc., Sunnyvale, California
 

Events 

Click here to request a Just Resolve presentation on how to resolve disputes fairly without going down the costly litigation path. 

Meet us at the
ACC Annual Meeting
October 28-31, 2014
New Orleans, LA
Rob Christopher, CEO
408-839-8581
rob.christopher
@justresolve.com
Sonya Sigler,
VP Business Development
650-281-8325
sonya.sigler@justresolve.com

SHOOTING THE LAWYERS? – A NEW ECONOMIC PATH FOR RESOLVING COMMON DISPUTES

by Rob Christopher

What if you could resolve stubborn disputes fairly and quickly without each side lawyering up for battle?
 
Resolving common disputes in court usually costs too much and takes too long.  For example, the average business, partner, neighbor or property disagreement, if litigated, will consume more dollars and time than what is at stake. This happens because of how our judicial system works and its inability to scale down process commensurate with stakes.  Even going only part way down the litigation path and then settling – as is the case in over 90% of all legal actions – seldom changes this expensive reality and so also fails to deliver real justice. For this reason, alternative paths have arisen in an effort to deliver more economic results. While legal disputes are rare for most of us, some are inevitable, and so it makes sense to know the basic options available and what each does and does not deliver.  The truth may surprise you, and point to a better path for many disputes.
 

ROLLING OVER


Of course, no survey of alternative dispute resolution methods (or “ADR”) would be complete without what may appear to be the easiest solution: foregoing our rights entirely. That means either not making a claim, if we believe we are the injured party, or paying whatever the other side has demanded, if we’re the recipient of a demand. For obvious reasons, doing this is not usually an acceptable solution. Even when giving up our rights may make financial sense, it never sits well to succumb to what feels like extortion or injustice.
 

CONVENTIONAL ADR


Two of the best-known forms of ADR are arbitration and mediation. Arbitration is, essentially, private judging pursuant to a contract without a right to appeal. It can be binding (i.e. enforceable in court) or nonbinding. Mediation is private, neutral-facilitated settlement negotiation that is binding only if the parties reach a written settlement. Both are “adversarial” like the court system in that the parties are separately represented by legal counsel who investigate the facts, determine strategy, maneuver for the advantage of their clients, and submit evidence, written briefs, and oral arguments to the neutral arbitrator(s) or mediator who preside over a jointly attended hearing or conference. Consequently, though both methods tend to be more informal and can be faster than going to court, they have become so “lawyerized” and expensive that they, like the courts, fail to deliver fast and economical justice in most “everyday" disputes.
 
The shortcomings of arbitration and mediation have led to new, non-adversarial ADR methods.  
 

COLLABORATIVE LAW

 
One of these is “Collaborative Law.” Under this method, the parties can retain a single lawyer expert in the pertinent area of law. (A less efficient variant of this method involves separate counsel.) This shared legal advisor investigates the facts and law with a view to seeking – and persuading the parties to accept by way of settlement – the fairest result for both.  If other expertise is required, that too is neutral and shared. This single-team investigation approach has obvious potential for great savings in time and cost that also can take into account what is at stake. For example, this has become an effective path in amicable divorce and child custody situations. It requires, however, that the parties essentially trust each other despite their differences, and its principal disadvantage is that, as in mediation, if the parties fail to reach agreement, they can each wind up having to hire new, separate counsel and litigate anyway.            
 

DISPUTE RESOLUTION BOARDS

 
Another relatively new non-adversarial method is known as a Dispute Resolution Board (or “DRB”). Typically written into major construction contracts, it consists usually of a panel of mutually agreed party representatives and neutral experts who are retained at the outset to monitor a project and attempt quickly to head off or resolve any brewing disputes that arise.  In projects where time-sensitive disputes are likely and parties are willing to give the DRB both process control and decision-making authority, this method can be very effective in quickly delivering affordable justice. Unfortunately, with a DBR, there is a high initial and ongoing price tag to negotiate procedures and recruit and pay multiple experts for monitoring even if no dispute arises. As a result, its use is difficult to justify outside of large and lengthy projects.   
 

NEUTRAL-DRIVEN RESOLVES

 
A third new ADR method offers perhaps the best hope for reliable, swift and economic resolutions across a broad range of limited-scope disputes. Like collaborative law and DRBs, this method is neutral-driven. Simply called a “Resolve,” it is a private contract-based method in which the parties jointly choose a neutral “Arbiter” who manages a cooperative investigation and negotiation of a dispute, and, if necessary, renders a final and binding decision (subject to expedited review). Parties have the right to consult separate counsel, but in a Resolve process such counsel has little opportunity for formal advocacy, delay or gamesmanship.  This method enjoys the primary benefits of each of the earlier-described conflict resolution methods without suffering their disadvantages. Offered by Just Resolve LLC, it combines (1) the integrity and respect for rights and fairness of the judicial system, including the right to a principled decision and appeal, (2) the single-team and practical truth-focused approach of collaborative law, (3) the just-in-time investigation, facilitated negotiation and private decision-making of mediation and arbitration, and (4) easily customizable rules and the time-saving ability of a DRB to reserve and choose competent neutrals in advance of a dispute.  It also does something no other method can:  Its cost to each side can be fixed in advance at a fraction of the financial stakes involved.
 
When both sides just want to resolve a dispute fairly, swiftly and with dignity and economy, using a neutral-driven process makes sense, and may be the only path to truly affordable justice.
 
 

Avoiding Arbitration

by Sonya L. Sigler

It would be great if arbitration were THE alternative answer to litigating in courts with over crowded dockets and ever shrinking budgets, but arbitration hasn’t turned out to be that kind of panacea over the last 40 years. I was stopped at a traffic light behind a vehicle with a license plate that said ARBATR8. Now, I haven’t thought about arbitration much, in years. In fact, I don’t think much about arbitration at all, but seeing that license plate got me thinking about arbitration. Mostly along the lines of…Read more of Sonya's blog
 
 

To Arbitrate or Not?


If arbitration can be more or just as expensive as litigation and just as time consuming, then what are the reasons one would choose to arbitrate a dispute? In this article, Mark Zebrowski discusses the factors that one should consider when deciding to arbitrate a dispute. Of course, a contract might require arbitration or it might be a preference of one of the parties to the dispute. Read more…
 
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