Part Two: Preparing for the 2011 Fortune 1,000 Survey of Corporate Counsel
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As alternative dispute resolution quietly integrated into conflict resolution practices previously dominated by litigation, new obstacles emerged. After experimenting with both arbitration and mediation, results were mixed.
By the 1990s mediation’s acceptance had grown. Many commercial contracts had dispute resolution clauses with mediation being an agreed upon approach before preceding to arbitration or litigation. Stipanowich and Lamare write that the reduction in the incidence of court trial was due to the increase in the use of mediation to resolve disputes. Though these changes were important for ADR, issues arose such as the affect of lawyer-mediators on the process. Excessive use of the adversarial method in mediation settings was concerning as well as resolutions that only focused on monetary goals.
Arbitration had also seen changes in use. Court decisions on the Federal Arbitration Act had promoted the use of arbitration, though elements of trial had begun to impact positive aspects of the arbitration process such as efficiency and cost. Stipanowich and Lamare write about a 2011 Rand Institute for Civil Justice Report on business to business arbitration showing respondents, “…identified four factors favoring a choice of arbitration: the avoidance of ‘excessive or emotionally driven jury awards,’ the ability to choose arbitrators with particular qualifications, the relative confidentiality of arbitration, and the relative ability of arbitrators to cope with complex contractual issues.” They also noted the report’s results on respondents attitudes towards pre-dispute arbitration clauses in commercial contracts: 44% were encouraged, and 36% were discouraged to use such clauses.
Read original articleTags: Alternative Dispute Resolution, Arbitration and Mediation, arbitration clauses, commercial contracts, Dispute Resolution
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