Question

Are the courts the best forum to resolve business disputes? Choose the forum that you believe is the best forum to resolve business disputes. Include the following in your post:

• Explain your reasoning for choosing this forum.
• Discuss the advantages and disadvantages of your selected forum.
• Evaluate the ethical issues that arise in your selected forum.

Answer 1

No, the courts aren’t always the best forum to resolve business disputes. “Alternative Dispute Resolution (ADR) is a category of problem solving options that use impartial third parties to help you settle disputes without going to court.”Mediation is one form of ADR. It involves someone that is a trained mediator to sit with both parties and work through the disputes. Not only does this save money but it can also save time by solving the problem quicker than a court hearing. Arbitration is another option.

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.

Its principal characteristics are:

• Arbitration is consensual

Arbitration can only take place if both parties have agreed to it. In the case of future disputes arising under a contract, the parties insert an arbitration clause in the relevant contract. An existing dispute can be referred to arbitration by means of a submission agreement between the parties. In contrast to mediation, a party cannot unilaterally withdraw from arbitration.

• The parties choose the arbitrator(s)

Under the WIPO Arbitration Rules, the parties can select a sole arbitrator together. If they choose to have a three-member arbitral tribunal, each party appoints one of the arbitrators; those two persons then agree on the presiding arbitrator. Alternatively, the Center can suggest potential arbitrators with relevant expertise or directly appoint members of the arbitral tribunal. The Center maintains an extensive roster of arbitrators ranging from seasoned dispute-resolution generalists to highly specialized practitioners and experts covering the entire legal and technical spectrum of intellectual property.

• Arbitration is neutral

In addition to their selection of neutrals of appropriate nationality, parties are able to choose such important elements as the applicable law, language and venue of the arbitration. This allows them to ensure that no party enjoys a home court advantage.

Like the mandatory arbitration clauses that have appeared in so many contracts, many courts at both the federal and state court levels now require (or strongly urge) parties to go to arbitration before allowing a case to be placed on the trial docket. While some courts (most federal and many state courts) still require a referral to arbitration to be "voluntary," others make arbitration or some arbitration-like process mandatory. If parties do not like what happened in the arbitration they usually have the right to a trial de novo, although they often have to post a bond, a practice which has been criticized as impairing the right to jury trial. " If courts are mandating arbitration, there are the same "ethical") issues about whether the parties fully consent to arbitration (as in the private contractual context). In addition, there are added ethical issues about what rules of "ethics" for the conduct of the arbitration should be applied in court-sponsored settings, whether there might be special or additional obligations in court-sponsored settings that are not applicable in private settings or whether court-appointed arbitrators are governed by the various "private" ethics codes for arbitrators (discussed below). Some courts with a great deal of experience with ADR like the Northern District of California, have gone so far as to promulgate, as part of their local rules and procedures for court-sponsored ADR programs, their own ethical standards for ADR