This article by Stuart Sobel appeared in the Daily Business Review on Oct. 24:
Board of Contributors: Avoiding Disputes Altogether Saves Money, Time, Relationships
By Stuart Sobel
Much has been written about alternative dispute resolution techniques, such as arbitration or dispute review boards. They are alternatives to traditional litigation that are often viewed as preferable to litigation in some respects. They may be more private, final and streamlined, for example.
But they can also be inferior to litigation. There is a limited ability to discover opposing evidence and, because of limited appeal, mistakes cannot easily be remedied.
And like litigation alternative dispute resolution still only comes into play after a dispute has ripened.
Traditional and alternative dispute resolution both take a toll on the clients who spend time and money with lawyers instead of their business. They also damage the clients’ relationship. It is not likely that a dispute, played out through any resolution process, will leave the parties willing to continue doing business in the future.
Making matters worse, dispute resolution has become increasingly uncertain.
Courts have been clogged with foreclosures, distracting judges from devoting the time necessary to properly consider and adjudicate complex business disputes. Court clerk budgets have been slashed, making it more difficult for the court staff to have files up to date and hearing times promptly available.
Courts have more matters and less staff with which to address their increased case load. Results become more erratic, slower and less predictable. At its heart, an effective dispute resolution process must be predictable; a result — or at least a range of outcomes — given a set of facts should be likely.
Unfortunately, that is no longer the case in too many instances.