Corrections or additions?
This article by Bart Jackson was prepared for the March 21, 2001
edition of U.S. 1 Newspaper. All rights reserved.
Quick & Simple Justice: Mediation, Arbitration
Last year more than 198,000 businesses sought mediation
and binding arbitration as a cheaper, swifter and infinitely less
complex solution to contract conflicts than courts of law, with their
long-robed judges and legendary delays.
And, as with any settlement process, victory often lights on the
of the most knowledgeable. To help managers understand the process,
professional arbitrator Kenneth Horowitz will conduct his two-part
course "Introduction to Commercial Arbitration for Small
Sponsored by Mercer County Community College, the course will be held
Wednesday and Thursday, March 21 and 22, at 7:10 p.m. on the West
Windsor campus. Cost: $40. Call 609-586-9446.
For the past 10 years, Horowitz has joined the 11,000 professional
members of the American Arbitration Association (AAA) to fill an
growing need. "Our case load has doubled just in the last two
years alone," notes AAA’s communication director Alexis
"And we expect a continued rise in requests." Those interested
in using the services of AAA or learning more about them — or
even becoming an arbitrator — can contact the AAA’s New Jersey
office in Somerset at 732-560-9560; or the corporate headquarters
at 212-716-3976 (www.ADR.org)
The AAA seeks a broad scope of members who can bring their specific
business expertise to disputes either singly or as part of a
panel. After majoring in business at Fairleigh Dickinson University,
Horowitz, who lives in Manalapan, spent several years at Arthur
and then joined Cott Printing Corporation, where he was responsible
for labor negotiations.
"The advantages of working through binding arbitration are
says Horowitz, "which is why more and more contracts include a
`disputation settlement by arbitration’ clause."
cheap arena. Usually cost are limited to renting a small office,
costs, and the $500 to $1,000 per day for the arbitrator. If it is
a complex case, the case may need a three-person arbitration panel.
Almost never do arbitration cases demand a recorder, though one party
may hire one and split the cost with its opponent or, on rare
shoulder it alone. "Interestingly," says Horowitz, "these
costs may prove higher than actual court costs on an actual per diem
basis. But just wait until the attorneys arrive."
Lawyers charge by the hour, and substantial time must be spent on
common litigation tasks, including motion preparation, evidence
time, depositions, document production, preparation of speeches, and
of course the longer days at trial. While counsel may — or not
— accompany disputing parties into arbitration, they appear simply
to aid in argument presentation.
Horowitz. "A really long case may drag on for a month. In court,
a decision could take years — then face appeal." One
reason for the speed of arbitration is the attitude of the disputing
parties. Typically both parties, along with the arbitrator, are
compromise, not victory. Both the supplier and his shipper, for
want to get the goods back on the road; this is where they intend
to make their money, not through a legal judgment.
"This is not to say that the arbitrator does not make judgments
which declare a winner and a loser," Horowitz hastens to point
out. "We are not mediators trying to negotiate a workable
that both parties agree to."
courtroom, by design, is adversarial; the judge aloof. Arbitration
proceeds with ties loosened through three basic steps: opening
presentation of facts, and the summary statements. If one party brings
forth 100 invoices, each with the same complaint, most likely the
arbitrator will unite both parties, and get them to distill them all
into a single complaint. No official rules of evidence apply. The
arbitration panel may recommend to both parties a swifter, more
method of argument presentation. Any agreed-upon means that leads
a fair decision is considered justifiable.
"There’s no, well, sleazeballs at these hearings," notes
Those who seek to con a quick victory usually head for the court room.
In all his years hearing cases, he has never been offered a bribe.
Of course, some of the battles do get downright nasty. "You walk
into a room," Horowitz smiles "and you see a mother and
snarling at each other across the table in a partnership dispute .
. . you just say to yourself `boy, this can’t get good.’"
For that reason, arbitrators must remain as Caesar’s wife and keep
all extraneous conversation to a minimum. Horowitz even avoids such
comments as "Say, how about those Thunders?" for fear of even
clause in your contract, your best bet is to contact AAA and visit
a hearing. Get the feel, determine the need for counsel, and consider
potential ways of arguing a case. Horowitz adds one tip for managers
steeped in this multi-media age: Don’t go wild with presentation.
Power point slides may impress the marketing boys, "but by in
large," he laughs, "we strongly prefer content over form."
Also, be aware that arbitration is totally final and binding, and
it uses the same muscle of enforcement as do the courts. While appeal
is technically possible, Horowitz has never seen a decision
"I suppose if the panel were incoherent and visibly drooling on
their decision papers, the verdict could be set aside," he says.
But it just doesn’t happen. While even a superior court judge can
have his ruling appealed if a mistake of fact can be proven, the
is not so subject to review.
Too often we hear resurrected the tired and quivering maxim, "the
government should run itself like business." Perhaps the dilemma
with our courts’ system is that it indeed does — embodying all
the sluggishness, politics and human error found in both fields. Yet
maybe the middle ground of alternative dispute resolution (mediation
and arbitration) can bring us a little closer to the swift and simple
vision that the aged maxim had in mind. And this might make business,
with all its inherent problems, run a little smoother for all of us.
— Bart Jackson
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