FROM OPPOSITE SIDES OF THE TABLE TO MUTUALLY BENEFICIAL RESOLUTION
Part of the reason I wanted to become an arbitrator was to make sure that I knew what it was like on both sides of the table. As a mediator and arbitrator, I’ve been able to do that. While many people think of arbitration as like litigation in a private setting, that’s not necessarily the case. In fact, the two processes are very different.
I’ve been involved with litigation in supply chain management as well as outsourcing and offshoring for more than 40 years and have served as Special Counsel for Bank of America Corporation in Charlotte, NC, and Deputy General Counsel of Wells Fargo Corporation, where I was a part of the Management Team of the Legal Department. At Wells Fargo, I led the practice group responsible for all corporate issues relative to global offshoring and outsourcing, intellectual property, commercial contracts, technology, and telecommunications.
Throughout my career, I came to understand that it was more beneficial to all parties to settle cases more quickly and efficiently through alternative dispute resolution. As a result, I decided to become a mediator and arbitrator to explore the possibility of alternative dispute resolution in more detail. As in-house counsel, I was acutely aware of the growing costs of litigation and thought that alternative dispute resolution might provide an alternative. After becoming an arbitrator and handling several cases, I became convinced that it was an effective remedy.
To effectively apply my experience in Banking and Financial Institutions Law and Supply Chain Management to the methodology of Alternate Dispute Resolution, I became a Certified Mediator through the North Carolina Dispute Resolution Commission and a Commercial Arbitrator with American Arbitration Association, Corporate Technology.
THE VALUE OF SUBJECT MATTER EXPERTS
The secret advantage of ADR is simple – It offers potential litigants the opportunity to have subject matter experts as the decision-makers at a reduced cost.
So, what can parties do to ensure that they have chosen the most suitable arbitrator for a dispute? I recommend that the parties select an arbitrator who has experience in cases of similar complexity to the case at hand and that the arbitrator has significant expertise in the subject matter of the case. In most cases, parties to a dispute will have a great deal of information about the strengths and weaknesses of their case. Parties will know why they believe that they are entitled to a certain sum or outcome, and parties will also know what evidence they can present at a hearing in support of their position.
The problem is that most parties do not have the same level of knowledge with respect to the law as they have with respect to the facts of their case. This is where an arbitrator with substantial experience in the subject matter comes into play.
An experienced arbitrator with significant experience in the subject matter can be extremely helpful for parties as they prepare for a hearing. For example, an experienced arbitrator will have a much better understanding of the relevant legal principles. In addition, an experienced arbitrator will better understand common scenarios that may arise during a hearing regarding a particular topic area.
This is why an experienced arbitrator can be so important. Arbitrators who have extensive experience in the subject matter are more likely to foresee potential problems that may arise during hearings and are also more likely to offer helpful guidance on how parties should conduct themselves during hearings.
COMPLEX ARBITRATION RULES – A NECESSITY OR HINDRANCE?
There has rightly been criticism that arbitration fails to provide parties with quick and efficient procedures and that arbitration rules are becoming more complex. However, this is not a reason to eliminate arbitration as a dispute resolution option.
Arbitration is still the best method for speeding up dispute resolution and reducing costs. The problem arises when arbitrators are too rigid in applying the arbitration rules developed for individual disputes to multi-party disputes. These strict rules may not be suited to the more complex nature of the conflict at hand.
For example, many arbitration rules contain limitations on discovery related to the complexity of the issues presented. These limitations are appropriate for individual disputes involving few parties, but they can become unwieldy when applied to large supply chain cases with multiple parties and issues. Therefore, arbitration rules must be adjusted to handle that complexity.
THE NEXT GENERATION OF ADR PRACTITIONERS – MY VISION FOR THE FUTURE
I think the next generation of lawyers should be prepared to fully embrace ADR as an alternative dispute mechanism equal to litigation. Future lawyers should also understand that ADR is not a “one size fits all” solution. There are different options for different types of disputes. Some tools can be an excellent means for resolving a conflict, while others may not be suitable. In addition, as ADR continues to grow as a means to resolve disputes, the legal profession must continue to develop and expand the scope of ADR-related skills and knowledge required to make sure that future lawyers can competently and confidently manage ADR processes. Finally, future lawyers should be prepared to advise their clients on all legal remedies and should be prepared to embrace the full suite of dispute resolution options, including litigation, mediation, and arbitration. My vision is that our next generation of lawyers will be able to discern when it is appropriate to apply an arbitration remedy and when litigation is the proper tool and advise their clients appropriately.
RESOLVING YOUR BANKING, FINANCIAL INSTITUTIONS AND SUPPLY CHAIN MANAGEMENT DISPUTES
I am prepared to resolve your dispute expertly with expertise in Banking and Financial Institutions Law and Supply Chain Management. If you require arbitration and mediation services, do check my schedule for availability.