• Drafting A Sensible And Effective Multistep ADR Provision
  • January 30, 2017 | Author: Gilbert Alan Samberg
  • Law Firm: Mintz Levin Cohn Ferris Glovsky Popeo P.C. - Boston Office
  • When businessmen (or their legal counsel) give much consideration to the dispute resolution provisions of their commercial agreements, they sometimes seek to delay engagement in adjudicative processes in hopes of achieving cost savings. The implicit thinking is that the longer one keeps the parties out of court or an arbitration proceeding, the more likely it is that they will avoid or reduce the costs of formal dispute resolution processes altogether. Toward that end, parties frequently create a multistep ADR scheme, which may include some or all of the following steps as options or as pre-conditions before commencing arbitration: (i) “amicable negotiation,” (ii) up-the-chain negotiations, (iii) advisory or adjudicative expertise, and (iv) mediation. But such schemes not infrequently represent the triumph of hope over practicality and business efficiency. The actual results of such a regime may include unnecessary delays and expenditures, issues left unresolved for extended periods, and deterioration of commercial relationships, which may become less productive or less functional, if not fractured or moribund.