USA Law and Practice Contributed by: John Desmond, Alexis Taitel, Alice Samberg, Mackenzie Robinson and Peter Dragovich, Dickinson Wright PLLC
submit to the arbitrator for full resolution of the merits. Today, it is more common to obtain preliminary injunc- tive relief from the arbitrator. Beyond interim relief, arbitrators have an array of remedies at their disposal. This can include a mix of equitable and monetary relief, or just one or the oth- er. And the remedies can exceed that which a party might be able to obtain via litigation. As an example, arbitrators can award reinstatement in employment cases. As another example, in construction disputes, an arbitrator can issue continuation orders, enforcing construction timelines or standards for a given pro- ject. The flexibility arbitrators enjoy in fashioning relief is largely attributable to the arbitration programme’s governing rules; the American Arbitration Associa- tion, for example, generally allows arbitrators to award relief deemed just and equitable. Parties can, how- ever, always contractually limit any otherwise available remedies. Aside from litigation or arbitration, parties can pursue ADR procedures such as mediation, conciliation, early neutral evaluations, or short trials for their disputes. Mediation is a voluntary, often confidential process where a neutral third-party helps resolve the dispute. The results in mediation can be binding, pending a signed settlement agreement or other agreement from the parties, although it is generally viewed as non-binding. Like mediation, conciliation also uses a neutral third-party to resolve the dispute, which can be binding pending an enforceable settlement agree- ment. Unlike mediation, conciliation is less formal, gener- ally featuring a more involved neutral third-party, who can engage with the parties separately and actively evaluate legal positions of the parties. Early neutral evaluations occur where disputing parties seek out a confidential evaluation from a neutral evaluator. Like arbitration or mediation provisions, parties can include provisions in their contract to submit disputes to an early neutral evaluation in advance of litigation or a more binding option. Short trials, although a form of 4. Other ADR Methods 4.1 ADR Procedures
litigation, are also available in certain jurisdictions to fast-track certain disputes. 4.2 Requirements to Engage in ADR There are formal requirements to engage in ADR in certain circumstances. Where a valid and enforceable agreement contains a valid and enforceable provision requiring ADR, such provisions are enforceable. Con- sequences for failing to do so can include denial of a trial de novo, striking with dismissal of the lawsuit alto- gether, along with sanctions. Certain statutes, whether federal or state, can also require ADR. Indeed, the Federal Arbitration Act requires arbitration when the arbitration provision or contract is valid and enforcea- ble. State-wise, for example, various states have com- pulsory arbitration in certain civil cases. Even then, the arbitration decision may not be binding. Outside of those instances, most ADR options are voluntary. 4.3 Impact of ADR ADR’s impact on the proceedings turns on a variety of factors. Because ADR is generally faster than liti- gation, ADR can be seen as both more efficient and less expensive. This is not always true, however, as a party engaged in ADR generally must split neutral expenses up front. Relatedly, ADR mechanisms can help streamline the proceedings, which can lead to better resolutions for the parties. Beyond that, ADR can provide confidentiality that a party would not oth- erwise be entitled to in litigation, which is presump- tively publicly-accessible. The effect of ADR on a party’s right to litigate turns on whether the ADR proceeding is binding. Non-binding ADR options, such as mediation or early case evalu- ations not otherwise restricted by a commercial con- tract, would not affect a party’s right to litigate or arbi- trate in and of itself. (However, pursuing those ADR options does not toll any applicable statute of limita- tions.) Binding arbitration does foreclose the ability to litigate, as there are limited bases to appeal a binding arbitration award. That said, a party can potentially waive arbitration by litigating a case for some time before trying to compel arbitration. 4.4 Timing of ADR As a practical matter, ADR techniques like mediation usually occur pre-litigation. Some states even require
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