留學(xué)生法律專業(yè)畢業(yè)dissertation定制：爭議的解決方式
Dispute Resolution Methods
Alternative Dispute Resolution
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The conventional description of the term ‘ADR’ refers to the various forms of ad hoc procedure which are consensual and not subject to any coercive powers of the court, except perhaps in the 留學(xué)生dissertation網(wǎng)enforcement of the resolution. These procedures are informal and are concerned with the amicable settlement of disputes between parties. This can be achieved through negotiation or arbitration.
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Introduction
The use of the expression 'ADR', as short for alternative dispute resolution, is the starting point of a misconception of what ADR really is. Alternative to what, you may ask? And if you do, you will soon find that the alternatives raise an issue of client choice. Increasingly, a key feature of client choice is the degree of opportunity to affect or control the outcome of a dispute.
A simplistic approach to the question is to ask whether you want an independent person to determine the answer, which means abrogating the right to direct involvement, or whether you want to preserve some control over the outcome.
Generally speaking, the choice of litigation involves the abrogation of the right to retain control. Litigation and arbitration can be further distinguished by issues concerning the proper law of the dispute, choice of venue and, within arbitration, the choice of arbitrator. Given the inflexibility of most litigation processes around the world, it is easy to understand why disputants should seek to opt out of litigation. But into what? Arbitration or ADR/mediation? To take this further, what if the dispute is on an international scale?
Arbitration offers parties the opportunity to affect and control the procedure that will determine the outcome and has long been a preferred means of dispute settlement internationally. It offers advantages that cannot be matched by litigation before local courts. It is possible to select decision makers who are specialised in international trade and commerce and equipped to deal with parties and counsel drawn from diverse legal and cultural backgrounds. Flexible procedures can be specially tailored to accommodate legal pluralism and to give priority to approaches that are practical and economic. In arbitration, parties are not constrained by local particularisms, especially rules of evidence and procedure. Arbitral independence is increasingly accepted as illustrated by the speech of Lord Steyn in the recent decision by the House of Lords in Lesotho Highlands Development Authority v Impneglio Spa & ors (2005).
Arbitration proceedings are held in private. When the parties have ongoing commercial relations that might be damaged if their dispute were public or where commercially sensitive information is involved - for example, trade secrets - arbitration may assist to protect confidentiality.
Finality of decisions and enforceability of arbitral awards across borders are, of course, also key attractions of arbitration, which is supported by a system of international treaties.#p#分頁標(biāo)題#e#
http://m.elviscollections.com/dissertation_writing/Law/Turning to ADR, the process which preserves the greatest degree of client control over outcome, the most common form is mediation. Like arbitration, it transcends international boundaries and offers potential for the quickest route to a solution to any given dispute.
A broad approach
So why has mediation developed such a broad approach to dispute resolution in such a relatively short space of time?
Some reasons for the appeal are simple and obvious. Forum is not an issue. Proper law is not an issue. Venue is not an issue. Cost is not an issue, when even the most complicated issues of fact and law can be resolved in a matter of days. Methods of enforcement can be built into settlement agreements. Informality of procedure means that clients are not intimidated by the 'system'. Outcomes are fashioned by the clients to suit their needs and wants, not what an independent decision maker says the parties 'shall do'. The opportunity for preserving or creating a meaningful relationship for the future is a realistic one in mediation.
With these actual and perceived benefits of mediation, it is worth spending a few moments to look at the world ADR stage. A convenient starting point is New York, where the UN passed Resolution 57/18 'A Model Law on International Conciliation' - in other words, mediation. It spells out in 14 short articles what mediation is all about. All member states are urged to adopt it. Since 19 November 2002, more and more countries worldwide have recognised the applicability of mediation and its availability to their own circumstances. Some have passed mediation acts of parliament, others have adjusted their rules of court to accommodate the use of ADR. For example, Nigeria has adopted a multi- door courthouse system with a high court judge who is empowered to make non-court-based mediation settlement agreements into enforceable orders of court - a system which works very effectively. In fact, every continent in the world has some of its countries using mediation.
The US, where modern mediation had its birth 30 years ago, South America, Australia, New Zealand, Asia, the Middle East, Africa and Europe, all have countries that are either using mediation or are well down the path to setting up mediation systems. This involves not only the training of mediators, but the willingness of judges and lawyers in practice to allow space for and to use mediation. These aspects take time to develop, but progressively the pace of growth of mediation is accelerating. There is increasing institutional support for mediation. The International Chamber of Commerce's ADR (amicable dispute resolution) rules introduced in 2001 is one example of this.
The one disappointing note is the missed opportunity within the EU to adopt a more positive attitude towards ADR for cross-border disputes. It is anticipated that it will still be left to individual countries to decide how to run their own mediation 'course'. But with so many countries already within the EU - and note that Bulgaria and Romania are taking a leaf out of the EU book with their own ADR strategies before accession - the chance is there. Is it too late for another look at the draft directive?#p#分頁標(biāo)題#e#
So what conclusions can we draw from this? One thing is certain, while litigation retains its own particular national style in any jurisdiction, arbitration and ADR/mediation are separate, individualistic and have that essential feature of the state of globalisation in which we now live - cross-border application wherever you are.
The Pros and Cons of ADR, Including ADR/Litigation Hybrids
The following is Vance Opperman’s article which can be found at 1 Sedona Conf. J. 79 (2000).
I. INTRODUCTION
Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser-in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good [person]. There will still be business enough.
These wise words could have been written by one of our contemporaries, a proponent of the recent increase in the use of alternative dispute resolution methods. They were in fact written a century and a half ago by Abraham Lincoln, in notes he prepared for a law lecture. Their significance has not diminished with time, however, and Lincoln's wisdom and counsel remain as pertinent to the practice of law in the twenty-first century as they were in the 1800s.
The popularity of ADR has increased dramatically in recent years. Almost all state and federal courts now employ some type of ADR, and the CPR Institute for Dispute Resolution's research shows that most federal judges favour ADR, as do an impressive ninety-seven percent of corporate executives. Another recent survey of 1,000 of the largest corporations in the United States revealed that ninety percent of the respondents viewed mediation as a cost-saving measure, eighty-one percent found mediation to be a more satisfactory process than litigation, eighty-eight percent had used mediation in the previous three years, and seventy-nine percent had used arbitration in the previous three years.
The value of ADR has been recognized by the public as well as the private sector. Congress passed the ADR Act of 1996, the President signed the Presidential Memorandum of May 1, 1998 supporting ADR, and Attorney General Janet Reno spoke in 1998 about her abiding commitment to ADR and her goal that every agency of the federal government implements at least one new ADR program in the following year.
There seems to be a common perception, however, or, in reality, a misperception, that complex cases are inappropriate for ADR. Actually, complex business cases are in many instances the best cases for some type of alternative dispute resolution mechanism, because in such cases the advantages of ADR over traditional litigation can be maximized and experienced on a grander scale. In a 1996 survey of general counsel and outside attorneys conducted by Deloitte & Touche, one respondent stated unequivocally that "mediation is the best process for cost effective complex business dispute resolution." Determining whether a particular case is best resolved through a method other than traditional litigation, and just what the best method is, are issues that every attorney should consider early in the development of each case.#p#分頁標(biāo)題#e#
II. WHY USE ADR?
Alternative dispute resolution techniques offer many potential advantages over traditional litigation practices. As former United States Supreme Court Chief Justice Warren Burger once noted, 'The notion that ordinary people want black-robed judges, well dressed lawyers and fine courtrooms as settings to resolve their disputes is incorrect. People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible A-D-R. How do you spell relief? In many cases, lawyers and clients alike spell relief".
A. ADR Saves Time.
It is not uncommon for a straightforward case to take three years to make it to trial, or to settlement on the courthouse steps. Worse yet, the courts are backlogged with cases that have been around for four or even more years.
Legislatures appear unwilling to spend more tax dollars on increasing the number of judges, so there is no immediate end to this backlog in sight.
The longer a case is kicking around before the matter is resolved, the greater the fees, the greater the frustration of the parties, the greater the chance for negative media attention, and, in many instances, the less likely it is that the parties will be satisfied with the outcome.
A study of ADR effectiveness in twenty-nine medical malpractice claims against the government handled by Assistant U.S. Attorneys revealed that seventeen cases were settled in mediation, and in another ten cases the issues were narrowed by mediation. The attorneys surveyed estimated that they saved an average of 100 hours of attorney time and six and one-half months of litigation time in each case, not to mention a per-case average savings of $ 12,000 in litigation costs.
Beyond saving attorney time and judicial resources, ADR saves the businessperson's time as well. Executives and managers are in the business of running a business, not litigating claims. Time spent responding to discovery, being deposed, and sitting in court or lawyers' offices does little to promote their businesses. Getting the same managers together more informally, such as in mediation, can cut through a lot of the posturing and help them focus on resolving their differences so that they can get back to what they do best- running their businesses.
B. ADR Saves Money.
Most everyone agrees that litigation is not, in many instances, a cost-efficient process. On average, ninety-eight percent of the costs of civil litigation are for legal fees. In some cases, the fees can even surpass the recovery. One commentator, a commercial litigator since 1974 and an arbitrator and mediator since 1979, cites the example of one case in which one of the defendants admitted that it could be found liable for part of the problem at issue, but that its liability could not exceed $ 100,000. Despite that fact, it had spent $ 400,000 in defence costs, and there was no end in sight-and it was only one of twelve parties involved in the case!
As more data have become available, it has become increasingly clear that using ADR techniques produces significant cost savings. For instance, a 1994 Price Waterhouse survey of corporate law departments indicated that forty-five responding companies experienced annual savings of $ 100,000 through the use of ADR, and ten percent of the respondents reported saving over $ 1,000,000 per year. The Center for Public Resources reported that in one year alone, its members experienced direct legal cost savings of about $ 77.5 million as a result of employing ADR methods to resolve business disputes.#p#分頁標(biāo)題#e#
DPIC Companies, a national insurance carrier, in recognition of the cost saving benefit of ADR, instituted a program it calls "Mediation Works!" Under the program, if a claim is made against an insured who agrees to mediation and the claim is resolved through mediation, the insurer contributes half of the insured's deductible up to $ 12,500. In about the first seven years of the program, the insurer returned $ 1,725,000 in deductible credits to its insured accountants, architects, attorneys, engineers and environmental consultants, and considers that it has saved much more than that as a result of the program.
Other businesses that have experienced significant savings by implementing ADR programs include The Toro Company, Motorola Corporation, and Brown & Root, Inc. Over the past several years, Toro saved over $ 15,000,000 by using ADR to resolve its products liability claims. It reduced its defence and settlement costs by more than fifty percent per claim and its insurance premiums by over $ 1,000,000 per year. Since the beginning of the program, Toro's revenues doubled and its profits tripled, with no concurrent increases in its legal staffing function.
Motorola implemented a strategic system of early case analysis and alternative dispute resolutions that resulted in a more than seventy-five percent decrease in litigation costs. It has sustained that result over a period of years without opening the floodgates of claims or increasing settlement costs.
Brown & Root has, since 1993, required its 30,000 employees to resolve all legal claims against the company through a four-option ADR program. The options include internal open door, internal ombudsman, external mediation and external binding arbitration. As a result, Brown & Root has cut its litigation costs by fifty percent, as well as institutionalized an early-warning system to flag issues in employee relations.
Government agencies, too, have tracked the monetary savings experienced as a result of using ADR rather than traditional litigation methods. As the FDIC, for example, relied increasingly on ADR in liquidations and other litigation matters, its savings went from $ 325,000 in 1991, to $ 4,200,000 in 1992, and to $ 9,300,000 in 1993.
Similarly, in a Deloitte and Touche survey of law firm attorneys and corporate general counsel, seventy-eight percent of whom said they had used ADR extensively, the respondents reported typical savings of fifteen to fifty percent over the cost of litigation. And a review of business disputes resolved by the CPR Institute for Dispute Resolution revealed that 440 companies with over $ 6.8 billion in controversy saved over $ 187 million by using ADR.
The U.S. tort system has been cited as the most expensive in the world. It takes up 2.2% of the gross domestic product- two and one-half times the average of all industrialized countries. Beyond the obvious costs, there is also a hidden cost of litigation, or what has been deemed a "litigation tax," which increases the cost of ordinary and useful products and services from aluminium ladders to doctor's office visits by as much as twenty percent. #p#分頁標(biāo)題#e#
C. The Parties Using ADR Maintain Their Privacy and Confidentiality.
In certain sensitive cases, the negative publicity and media attention surrounding a protracted lawsuit can cost a company more than the legal fees and damages involved. Using ADR, that publicity can usually be avoided. One lawyer/mediator cites the example of a UCC-based case brought by a Fortune 1000 corporation against a supplier for the alleged contamination of a food product that the defendant continued to supply to grocers until the contamination could be assessed. In such a case, the negative publicity, even if the allegations are completely unfounded, can cause serious and long-lasting damage to reputation and profits.
The confidentiality of ADR may also foster more complete disclosure at an earlier stage of the process, which can both speed up the resolution process and provide a fairer result. In a classic mediation, for example, all parties generally begin by signing a confidentiality agreement providing that all information revealed, positions taken, admissions made and views expressed are not discoverable. As a result, parties often feel more comfortable revealing things they would not wish to state publicly. The assurance of confidentiality often enables the mediator to obtain a broader and more comprehensive understanding of a case, which in turn allows the mediator to better assist the parties in reaching a settlement. A mediator is able to move beyond public bargaining positions and understand the genuine needs of the parties.
D. ADR Enables the Participants to Use Creative Resolution Strategies and Retain Control of the Process.
When the parties agree to use ADR, they are free to fashion whatever resolution strategy to which they agree. They can stick with one of the established methods discussed below, or pick and choose some elements from each, or even design something entirely new.
E. ADR Neutrals or Decision-makers Can Be Experts in the Subject-matter of the Controversy.
In many ADR cases, the parties have more input into who the person hearing the case is than they would in traditional litigation. In arbitration, for example, the arbitrator is often selected based on his or her subject-matter expertise. This can be especially important in complex cases.
In the mini-trial, another ADR method widely used in large- scale disputes between businesses involving complex legal and factual questions, such as products liability, construction and antitrust cases, the case is "tried" before the top management of both parties rather than a judge or jury. Often an expert in the subject area sits with the parties' management representatives.
The parties are often more confident leaving the decision to or being guided by someone who actually knows the particulars of their industry or type of conflict, and are therefore often more satisfied with the result.
F. ADR Helps Preserve Relationships.
Generally speaking, once a lawsuit is filed, the opposing parties' positions become polarized and the focus becomes proving that "I'm right" and "You're wrong." This adversarial attitude is obviously not conducive to maintaining a positive relationship between the parties, but in many business cases that should be the goal.#p#分頁標(biāo)題#e#
Say, for example, you represent ABC Manufacturing Company, which regularly purchases all of its widgets, a necessary component of its products, from XYZ Corporation. After much research and experience, ABC determined that XYZ provided the best widgets at the best price. Recently, however, XYZ failed to provide the requisite number of widgets and, as a result, ABC was unable to honour its obligations to its customers. Now everybody has sued everybody else up and down the chain of distribution. The adversarial nature of the traditional litigation process may not serve your client's best interests in this case, because ABC would be best served by preserving its business relationship with XYZ. Alternative forms of dispute resolution can resolve the present conflict without the adversarial go-for-the-throat tactics of a trial.
The construction industry is another good example of an area in which ADR is often preferable to litigation. In construction cases, the same general contractors and subcontractors may work with each other over the course of many years on various projects. The architect on a project may be the one choosing the various contractors, so that the contractors have no choice but to cooperate on future jobs, or lose the work. It certainly does not foster a cooperative attitude if the various parties are or have been embroiled in bitter litigation. Instead of the win/lose nature of a trial, ADR offers more opportunity for compromise and fashioning a remedy that is conducive to preserving the working relationship of the particular parties involved.
Business relationships, unlike marriages, often do not terminate at the end of litigation. It is therefore essential that an already strained relationship not be further eroded by the litigation process. As one commentator has noted, "Litigation, once a form of damage control, has today become the means of further damage infliction." ADR can short-circuit that damage-inflicting process.
III. WHEN NOT TO USE ADR
Although most civil disputes can be resolved through some alternative dispute resolution procedure, ADR is not a panacea and some cases are not appropriate for ADR. Experience has shown that ADR, or a particular ADR method, may not be effective in the following circumstances.
A. The Case Is Not Right for ADR.
ADR may not be an appropriate choice in certain matters because of the nature of the case itself. For instance, if one party has a clear right to win under statutory or case law, there is little point in mediation, since the most likely outcome of that method is a compromise. Also, if one party wants to set a legal precedent or make new law, a traditional trial may be a better choice because ADR decisions apply only to the parties involved in that particular case. Matters involving constitutional interpretation or application are usually not right for ADR, nor are declaratory relief actions or other matters involving statutory or contract interpretation, which have proven to be better handled by the courts. Other cases that may be inappropriate for ADR include those in which unassisted negotiations are proceeding smoothly; cases in which one side is likely to win quickly and inexpensively with a motion; and cases in which one party believes it can win a big verdict against the other party, because ADR is based on compromise.#p#分頁標(biāo)題#e#
B. The Stage of the Proceedings Is Not Right for ADR.
ADR attempts can fail based on lack of preparation or inadequate discovery. Just because ADR is a more informal process does not mean that all of the rules and formalities can be dispensed with. Discovery is necessary even when using an expedited process and no one should expect a good result from ADR without adequate preparation. It is essential that parties have a clear idea of the evidence in support of their position before going to the bargaining table.
C. The Parties Are Not Right for ADR.
Even when a case is right for ADR and the matter is developed to the appropriate point, efforts at informal resolution may fail if, for instance, both parties are not settlement-minded and willing to compromise. Thirty-three percent of the respondents in the Deloitte & Touche national ADR survey of corporate general counsel and outside attorneys listed lack of chemistry between the parties as the reason for a failed ADR attempt.
ADR is unlikely to succeed in resolving a matter if one party is irrational or has unrealistic expectations. Take the example of a mediation in which one party announced that she was entitled to millions of dollars because God had told her so in a dream. She was obviously not in a compromise frame of mind. Also, cases in which one party feels intimidated or overwhelmed by the other party may not be suited for ADR, although this imbalance can sometimes be corrected if the vulnerable party is properly counselled by its attorney.
When one side is engaged in litigation with the intention of bleeding the other side dry or for some other malicious reason, or if the parties are already involved in an especially acrimonious dispute, ADR may just delay the proceedings and add another step to an already burdensome process.
D. The Attorneys Are Not Right for ADR.
Just as uncooperative parties are ill-suited to informal dispute resolution, hostile or incompatible attorneys can sabotage ADR efforts. The Deloitte & Touche survey revealed that thirty percent of those involved in failed ADR attempts identified interpersonal conflicts between lawyers as the reason for the failure. The same negative attitudes that interfere with a party's resolution ability can infect a lawyer's attitude, making ADR efforts difficult if not impossible. In many cases, too, an unreasonable lawyer leads to an unreasonable client.
IV. FORMULATING A RESOLUTION STRATEGY
Turning again to the words of Warren Burger, the former Supreme Court Chief Justice once noted:
“The obligation of [the legal] profession is to serve as healers of human conflicts. . . . [We] should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense and with a minimum of stress on the participants. That is what justice is all about. Our litigation system is too costly, too painful, too destructive, too inefficient for a civilized people.” #p#分頁標(biāo)題#e#
One of the first things a good lawyer does when confronted with a complex case is to develop a resolution strategy. In order to do so, counsel must ask himself or herself two important questions:
. what are my client's objectives?
. what is the best process to achieve those objectives?
There are as many styles of ADR as there are business problems. Choosing the best ADR method for a particular case involves identifying the barriers to resolution, and determining what method or combination of methods will best break down those barriers. Judy Julian , an experienced litigator and ADR professional, warns that many attorneys attempt to fit their cases into neat little boxes, locking themselves into one of the more traditional ADR methods like mediation or arbitration, without failing to consider how a more creative approach might be best suited to a particular case.
The beauty of ADR is its ever-evolving nature, and the inherent quality that allows willing participants to fashion a methodology suited to their individual needs in each particular case. The best approach may be to choose individual facets of the various ADR methods and combine them into a resolution strategy tailor-made for breaking down the barriers to agreement in a specific dispute. If both sides are sure they will win, for instance, an early neutral evaluation, a mini-trial or a private judge may give them a more realistic sense of how the case will come out, and then they can move on to mediation to resolve the matter.
Courts are supportive of the creativity involved in formulating the right resolution strategy in individual cases. As one court noted: ”We recognize that [ADR] is an evolving concept and that new mechanisms, often borrowing on more traditional ones, are being created. Although we would not likely be inclined to enforce an agreement to resolve a dispute through trial by combat or ordeal, we do not wish to put a straightjacket on the creative development of new forms of [ADR] that individual parties, or industries, find useful and preferable to litigation.”
With that said a review of the basic ADR methods can provide a starting point for considering what method may work best in a particular case. There are two main categories into which all ADR methods fall: facilitative and evaluative ADR. In facilitative ADR, a neutral assists the parties in reaching a settlement by encouraging communication and permitting them to make their own assessment of each side's interests and alternatives. In a facilitative ADR session, such as mediation, the neutral does not give an opinion about how the dispute should be resolved, but rather allows the parties to control the process and develop their own resolution.
In evaluative ADR, the neutral acts more like a judge. He or she provides the parties with an assessment of the merits of some or all of the case, and sometimes makes a binding decision (if the parties have agreed in advance to that outcome). Examples of evaluative ADR are arbitration and early neutral evaluation.#p#分頁標(biāo)題#e#
Some programs incorporate elements or concepts of both facilitative and evaluative ADR. Toro, for instance, implemented a strategic dispute resolution program in order to reduce litigation costs, convey a more positive image to its customers, and avoid the unpredictability of jury verdicts and punitive damages risks. At the outset of each case, a Toro representative meets with the plaintiff and/or his or her attorney and the parties have a frank discussion. Then an engineer analyzes the accident, after which the case is evaluated. Next, a mediation agreement setting out the benefits and the information each side will receive is sent to the plaintiff's counsel, and then the claim goes to mediation.
It is important to note that lawyers are still essential to the process. Parties represented by attorneys will not feel as threatened, counsel can address any mistaken assumptions made by the neutrals, and if the attorneys tell their clients that they agree with a position taken, they can bolster the stand or opinion of the neutrals and help encourage resolution.
And now for the basic (and one not-so-basic) methods...
A. Arbitration
In an arbitration, the parties engage in the competitive presentation of evidence before a neutral decision-maker selected by the parties, who will make a (usually) final decision. The arbitrator is often chosen on the basis of his or her subject-matter expertise. The hearing is conducted according to the rules of procedure and evidence selected by the parties. Arbitration decisions usually cannot be appealed, except in cases of undue influence, bias, duress or the like, although this aspect is changing as more courts acknowledge the greater need for judicial review of arbitration decisions.
Arbitration is often employed in labour-management disputes. Unions and employers have found it mutually advantageous to have an informed arbitrator resolve their conflicts in an economical and expedient manner. Because of the proven track record in the labour arena, the business and commercial world has become more enthusiastic about using arbitration to resolve other disputes as well.
In court-annexed arbitration, the parties are required by the court to participate in non-binding arbitration. An increasing number of state and federal courts have adopted this approach. Another hybrid method of dispute resolution is mediation-arbitration, or med-arb, which combines the approaches of mediation and arbitration. First, a mediator attempts to bring the parties to a consensus, but if they cannot compromise they then proceed to arbitration for a final and binding decision.
B. Early Neutral Evaluation (ENE)
In a typical ENE proceeding, the parties, through counsel, submit written statements of their positions and the supporting evidence to a neutral "advisor." Additional information may be presented in a face-to-face meeting with the neutral. The neutral assesses the merits of the dispute and provides a non-binding assessment. After the parties receive the evaluation, they may proceed to settlement, using the early evaluation as a starting point.#p#分頁標(biāo)題#e#
ENE can be especially useful if the party or attorney on one side of a dispute has unreasonable expectations as to the outcome of the case and has refused to entertain all reasonable offers of settlement. A reasoned opinion from an informed and unbiased person can be just what it takes to overcome obstacles to resolution and move all parties into a settlement mode.
C. International Dispute Resolution
International dispute resolution typically involves an arbitration-type procedure employed to resolve disputes between companies doing business internationally. U.S. companies that enter into contracts with foreign entities often choose to settle their disputes through ADR rather than facing the uncertainties inherent in filing a lawsuit in another country's judicial system. For that reason, many companies include arbitration clauses in their international agreements, which require that the parties settle all disputes arising under the contract, or disputes relating only to particular issues, through arbitration rather than litigation.
Even when there is no contractual relationship between the parties involved in an international commercial dispute, they may still decide to resolve their dispute through arbitration administered by an international arbitration institution or in a more ad-hoc manner in another neutral location. The parties may agree to apply the rules of any international arbitration organization, even if that organization is not involved in the arbitration. In such cases, the chosen arbitrators must be familiar with the rules adopted. The parties may also agree to a modification of the rules.
Due to the increasing globalization of trade and business in recent years, there has been a corresponding increase in the need for uniformity and orderliness in international arbitration. In response to that need, the American Arbitration Association (AAA) developed model rules for international commercial arbitration. The rules, recently revised to provide for greater efficiency and clarity, are uniform and neutral. International parties may proceed under these rules or under specialized industry rules.
The AAA has cooperative agreements with arbitration institutions in over fifty other countries and has helped other nations establish national arbitration acts and arbitral bodies. Under the cooperative agreements, the AAA and the other countries' institutions cooperate in choosing arbitral locales if the parties' contract is silent or there is no contract, assist each other in selecting arbitrators, and administer the arbitration. The AAA monitors its panel of arbitrators for expertise, skill and diversity.
Other organizations, too, facilitate the prompt and efficient settlement of international business disputes. The Commercial Arbitration and Mediation Center for the Americas (CAMCA), a union of arbitration organizations from the United States, Canada and Mexico, entered into a cooperative agreement to resolve all disputes under the NAFTA Accords. The Accords encourage the use of ADR.#p#分頁標(biāo)題#e#
The CAMCA agreement includes a multinational roster of arbitrators and mediators, and its goal is to eliminate problems due to cultural differences. In the future, more countries may be added to CAMCA.
Additional international ADR institutions include the World Intellectual Property Organization Arbitration Center in Geneva, Switzerland, created in 1994; the International Federation of Commercial Arbitration Institutions, which has existed since 1985; the Inter-American Commercial Arbitration Commission, which is now part of the Organization of American States; and the International Center for Dispute Resolution in New York City, which administers the impartial resolution of disputes between international business litigants.
D. Mediation
Mediation is the fastest growing ADR method. Many courts now require that disputes be mediated before they are tried. Mediation is geared toward compromise, in order to resolve a past dispute or create agreement for the future, with the assistance of a skilled neutral. A major advantage of mediation over arbitration is that in mediation, the decision- making power is always held by the parties.
The mediator's function is to keep the parties talking and to move them toward compromise. A good mediator can identify and clearly articulate the parties' fundamental underlying interests and help them over any emotional roadblocks. Lawyers are also essential to this process, because they can point out the risks of the various settlement proposals and help the parties focus their energies on solutions that best meet their needs.
The choice of a particular mediator should be based on the nature of the dispute and the parties' personalities. A mediator must be a good listener and a creative problem- solver. The mediator should also have sufficient experience to command the respect of the parties and their lawyers. The success of the mediation often depends, however, not only on the choice of the mediator, but also on the participants' attitudes. If the parties think of mediation as a means to achieve a tactical advantage, such as by causing delay, agreement is unlikely. On the other hand, when parties enter into mediation in a good-faith attempt to reach a compromise, the process holds great promise. It is essential, however, that the parties be willing to move beyond the personalities and emotions involved if mediation is to succeed.
The key benefits of mediation are its voluntary nature, collaborative approach, element of control, confidentiality and impartiality. Based on having resolved their own conflict, the parties also tend to achieve greater satisfaction, which in turn leads to a greater likelihood of compliance with the decision.
Mediation may be particularly appropriate when the parties want to remain on good terms with each other, since it avoids much of the acrimony of traditional litigation.
E. Mini-trials
A mini-trial usually involves an abbreviated presentation of evidence to one or more expert neutrals in the presence of the executives or top management of the companies involved in the dispute. Mini-trials help to define the issues and develop a sound basis for realistic settlement discussions. They are most effective and are often employed in large-scale business disputes involving complex legal and factual questions, such as products liability, construction and antitrust cases.#p#分頁標(biāo)題#e#
As in traditional litigation, the parties in a mini-trial engage in discovery before the trial begins, but in the mini-trial process the exchange of information is according to the terms of the agreement between the parties. The parties also exchange written statements summarizing the issues in the dispute.
In the mini-trial itself, the parties' lawyers and experts present a condensed version of the case to the top management of the disputing businesses, rather than to a judge or jury. An expert in the subject matter of the dispute often sits with the parties' management representatives. After the presentations, the managers try to negotiate a solution. If they fail, they may ask for a neutral advisor's best guess or opinion on the probable outcome of the case, and then resume negotiations. The advisory opinion is not binding unless the parties agree before the mini-trial that it will be, and then enter into a written settlement agreement.
After the neutral provides the advisory opinion, the managers or executives meet again to attempt to resolve the dispute. If resolution still eludes them, they may either abandon the proceedings or submit written offers of settlement to the advisor. In the latter option, the neutral advisor reviews the offers and makes a settlement recommendation on that basis. If the parties reject the recommendation, once again they may terminate the proceedings and proceed to resolve the dispute by other means. Because mini-trials are confidential, no statements made by participants may be used in any subsequent proceeding.
Participants in a mini-trial should define their agreed-upon process in writing. Rules of evidence do not apply at the mini-trial, but rather any limitations on the evidence presented are determined by mutual agreement of the parties and enforced by the neutral advisor. The neutral advisor should also be selected by mutual agreement of the parties. The parties' lawyers and ADR organizations, like the American Arbitration Association, can aid in making that selection. The parties' counsel should remain involved throughout the mini-trial in order to present their clients' best case at the information-exchange stage of the proceedings and to advise their clients on the propriety of various settlement options.
The keys to a mini-trial's success are the free exchange of information and the presence of both sides' top management. Mini-trials enable managers who may have become insulated from the true strengths and weaknesses of their cases to see the dispute as an objective observer would, which may short-circuit the need for a full-blown trial and set the stage for cooperative settlement.
F. Private Judging
By statute or court rule in most states, parties involved in a dispute may appoint a person of their choosing as the decision-maker. Sometimes the "private judge" is a retired judge from the traditional court system, and in other instances the parties may appoint a judge with specialized expertise in the subject matter of their dispute. Private judges can act as traditional judges in a quasi-trial setting, or as arbitrators or mediators if either of those ADR processes is chosen by the parties.#p#分頁標(biāo)題#e#
In the quasi-trial setting, the appointed judge has full judicial powers, except the power to hold persons appearing before him or her in contempt. The parties may agree that the private judge's decision is non-binding, but it is nearly always selected as a binding option. In the latter case, the private judge's decision is entitled to entry as a judgment and may be appealed.
In some cases, the private judge is called upon to decide only certain issues and submit his/her decision to the court, which will continue with the traditional litigation process. This procedure may be suggested or even ordered by the trial court when the issues are too time-consuming to be addressed in the ordinary course of the court's business. In most instances, the trial court adopts the private judge's recommendations.
There is no transcript of the private-judging proceedings that becomes part of the public record, and it is therefore a more confidential process than a trial. There is also a greater likelihood with private judging that the dispute will be handled when scheduled, rather than continued to a later date to accommodate the court's over-crowded calendar. Private judging may be less costly than litigation, too, since the parties often split the cost of the private judge and resolution usually occurs earlier in the case than a trial would, thereby saving both time and money.
Because private judging is confidential, allows the parties to appoint a decision-maker with expertise in the subject matter involved in the dispute, and provides for a more prompt resolution, all at a time http://m.elviscollections.com/dissertation_writing/Law/chosen by and convenient to the parties, it can be a very effective dispute resolution option. As with the other ADR methods, the parties' lawyers should help them decide if private judging is a good option for them, help them select the judge, and advise them on their rights and an appropriate outcome.
G. "e-ADR"
One not-so-traditional form of ADR is the fairly recent innovation of Internet-based settlement services. Although a complex business dispute may not readily lend itself to on-line resolution, this new 留學(xué)生dissertation網(wǎng)phenomenon is nonetheless worthy of mention. Following are two examples of electronic dispute resolution services.
1. NAM Corporation's clickNsettle. Com (www.clickNsettle.com)
ClickNsettle.com utilizes a direct settlement format that enables parties in a dispute to enter "blind" and confidential offers and demands via the Internet. It provides parties involved in disputes that can be settled monetarily the opportunity to negotiate their case without actually "tipping their hand" about what settlement terms they would find acceptable. The demands and offers are secure, and only the final settlement amount is revealed, which ensures that neither party will lose bargaining power if the case does not settle. The site also provides detailed reporting of arbitration and mediation results, as well as settlement statistics.#p#分頁標(biāo)題#e#
The companies that have registered with clickNsettle.com include Royal & Sun Alliance, The Empire Insurance Group, National Grange Insurance, American Transit, Toys 'R' Us, Travelers Property Casualty, and other major corporations and law firms. n33
2. Cybersettle Inc.'s cybersettle. com (www.cybersettle.com)
Cybersettle.com claims to be the first independent on-line claim resolution system, offering twenty-four-hour, seven-day-a-week access. It attempts to settle claims by matching offers and demands, in the blind, via a password-protected, network-secured web site. Cybersettle's on-line service allows participants to submit three offers or demands via its web site. If an offer and demand are within agreed-upon boundaries (typically thirty percent or $ 5,000), the claim is instantly settled for the median amount.
Cybersettle.com has processed over 2,500 claims and boasts more than 3,000 insurance claims representatives as regular users. The Jacoby & Meyers law firm aligned with this on-line settlement service in August 1999 with the intention of using cybersettle.com to resolve thousands of its personal-injury, products liability, medical-malpractice and work-related claims.
V. CONCLUSION
Derek Bok, former president of Harvard University, stated: "Over the next generation, I predict, society's greatest opportunities will lie in tapping human inclinations toward collaboration and compromise rather than stirring our proclivities for competition and rivalry. [These may be] the most creative social experiments of our time."
Therein lays one of the greatest challenges -- and certainly one of the greatest opportunities - faced by lawyers involved in complex business litigation today. It is incumbent upon you to abandon the traditional mind set that automatically catalogues every dispute that crosses your desk into conventional litigation. It is up to you to be an innovator by determining when and how to use alternative techniques to resolve business conflicts and better serve the interests of your clients, the judicial system, and even yourselves. Much has been said about removing the acrimony from the dispute resolution process for the clients' sake, but legal practitioners have just as much to gain, if not more, by stepping away from the adversarial process, when appropriate, and engaging in more cooperative and less stressful resolution strategies.
