In preparation for next week’s Annual Meeting of the American Bar Association, I have been delighted to get to know a group of judges who will be offering a program on Saturday afternoon, August 7, on the use of ADR in Business Courts. One of them, Judge Steven I Platt of Maryland, maintains an interesting blog to which he has recently contributed a thoughtful article on the “why” of dispute resolution in business courts.
Judge Platt’s main premise is that business disputes need more than a resolution of the presenting conflict. They need some analysis of the reasons the conflict arose, and a correction of those underlying causes in order to prevent a recurrence of the same issue. That is, courts are being asked not just to rule on cases, but to help solve problems that give rise to cases.
He suggests that, for a varity of reasons, there has arisen among the general public “enhanced expectations that disputes should not just be resolved, but that they should be resolved in a manner that economically and efficiently addresses their cause so that they will not be repeated.”
These expectations are made more pressing in the context of business disputes, argues Judge Platt, because businesses have “special needs” that have prompted the courts in many states to create business or commercial courts.
The “special needs” of the parties and counsel in business cases in all of these states are identified as more timely, rational, legally correct and predictable resolution of these [business] disputes. It is also important that these disputes be resolved or decided in a manner that recognizes that unlike many other types of cases, an untimely, i.e. arbitrarily and unduly delayed resolution of a case or dispute may literally devastate economically one or both of the parties ability to continue to operate particularly in an economy such as the one we’re in now.
The Judge cites three techniques that judges might use to satisfy these expectations:
1. Settlement Conferences, run intelligently and with finesse, including at times the opportunity for Early Neutral Evaluation;
2. Mediation, by which the Judge means “a process, not an event,” and featuring most prominently an early informal exchange of “information [that] may be essential to developing an accurate assessment of risk in order to determine the leverage that a party may have in the litigation;” and
3. Arbitration that is carefully designed to “take into account the special characteristics of business disputes and the necessary balance between economy and efficiency and fairness.”
Clearly we have here a thoughtful and perceptive public servant who has taken seriously the admonition that was stated ten years ago by the Lord Chief Justice of England and Wales Lord Harry Woolf:
“The purpose of a civil court is to assist the parties to resolve their dispute.”