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Does anyone out there have any experience with alternative dispute
resolution? I run a small business in Michigan and I do not have the
time or the money to continually hire a lawyer to assist me with legal
problems that arise (usually related to nonpayment or slow payment for
my services). I have heard that arbitration and mediation is much
faster and much less expensive than hiring a lawyer and going to
court. Does anyone know of how I can do this with my customers?
Bob Traver
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Mr. Traver
I serve as an arbitrator and a mediator. Both can be much less expensive
than traditional litigation. Both can be much faster at resolving a
dispute than litigation. Both protect the privacy of the parties.
In arbitration, the parties submit their dispute to an impartial person
or panel. You may have contract language specifying that if there is a
dispute, it will be submitted to arbitration rather than litigation. The
panel then makes a binding award.
In mediation, the parties utilize a mediator to facilitate communication
so that their issues and needs are communicated. Parties may or may not
come to a resolution. The mediator does not have the authority to impose
a resolution. Because it is not adversarial, mediation may be used to
keep ongoing relationships.
I provide both mediation and arbitration services.
Mike Boersma
The Law Office of Michael E. Boersma, PC
www.law-office-of-meb-pc.com
robert traver wrote:
Does anyone out there have any experience with alternative dispute
resolution? I run a small business in Michigan and I do not have the
time or the money to continually hire a lawyer to assist me with legal
problems that arise (usually related to nonpayment or slow payment for
my services). I have heard that arbitration and mediation is much
faster and much less expensive than hiring a lawyer and going to
court. Does anyone know of how I can do this with my customers?
Bob Traver
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Does anyone out there have any experience with alternative dispute
resolution? I run a small business in Michigan and I do not have the
time or the money to continually hire a lawyer to assist me with
legal
problems that arise (usually related to nonpayment or slow payment
for
my services). I have heard that arbitration and mediation is much
faster and much less expensive than hiring a lawyer and going to
court. Does anyone know of how I can do this with my customers?
Arbitration is an alternative to litigation. It is not an alternative
to the services of an attorney. If the matter in dispute is such that
you would use an attorney rather than small claims court if the matter
were to be litigated, than you still need the services of an attorney
to handle that matter in arbitration. Think of it as a trial, with an
arbitrator instead of a judge, and no jury. All of the rules of
evidence apply unless the parties agree otherwise.
Mediation is a non-binding procedure in which the parties are
encouraged to settle the dispute, and are given help by the mediator
in negotiating the settlement. You can do that any time that you and
the other person agree to do it. But it's not binding. So if either
of you don't like the result, that person will still litigate the
matter.
The other party cannot be forced into arbitration or mediation unless
you have a contract with that person, providing for the alternative
dispute resolution.
McGyver
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n Thu, 14 Oct 2004, "McGyver" <Greyprof@msn.com> wrote in part:
"robert traver" <roberttraver3000@yahoo.com> wrote:
Arbitration is an alternative to litigation. It is not an
alternative to the services of an attorney. If the matter
in dispute is such that you would use an attorney rather
than small claims court if the matter were to be litigated,
than you still need the services of an attorney to
handle that matter in arbitration. Think of it as a trial,
with an arbitrator instead of a judge, and no jury. All
of the rules of evidence apply unless the parties agree
otherwise.
* * *
The other party cannot be forced into arbitration . . .
unless you have a contract [in writing] with that person,
[so] providing . . ..
With all due respect, there may be reason for at least a partial
dissent (though [except for some basically trivial disputes in some
courts] not about the need for an agreement in writing if arbitration
is to be the exclusive mode of dispute resolution).
There are many kinds of businesses in/for which an attorney can advise
a client in advance about what sort of arbitration provision to seek,
about how (perhaps: later routinely and comparatively very simply) to
prepare and serve (usually just by mail) a demand to initiate an
arbitration, about how to deal with the arbitrartor selection process,
about how to schedule and prepare for a hearing, perhaps even about
how to prepare and complete and to serve and otherwise process an
approprate application to a court for enforcement of an award in if
need be, etc., etc., all in ways that, in general, are far less costly
and time-consuming and also more efficient and mutually fair and
otherwise effective than a lawsuit in court.
Certainly, however (if obviously), it is also presumptively desirable
for someone in the OP's position to obtain more
knowledgeable/sophisticated legal advice from a lawyer familiar with
commercial arbitration than can be expected based only on his cursory
posting about whether arbitation actually would be desirable for him
and his business and, if so, how to draft an arbitration provision
that probably would be most beneficial while also trying to guard
against provisions that might be prejudiical, depending on the
particular nature of his business and customers and a less vague
evaluation of the sorts of law-related disputes that realistically can
be expected to arise for him.
F'r'instance: an agreement to arbitrate might be desirable, if the OP
is correct to believe that the only unresolved law-related disputes
likely to arise will be simple collection cases, but might not (or,
possibly, would be) desirable if encompassable within the scope of his
would-be arbtration provision are unresolved disputes that the OP
would be better served by having a court resolve; even (and, maybe,
especially) for anticipated collection claims, there may be ancillary
"account stated" and limitation-of-arbitrator authority provisions
that ought be included; bearing in mind what sorts of claims likely
will arise, it might be desirable to address whether explicitly
including some sort of pre-hearing discovery procedures would/wouldn't
be beneficial even if arbitration is otherwise preferred; and, more
generally (and as the OP implicitly notes in part), even if
arbitration is preferable, there are different ways most effectively
to have a customer (or customers in general) agree. Etc., ETC., etc.
(not that, depending on the specific facts relevant to the OP's
business, this sort of Stuff need be complex).
"McGyver" is also undoubtedly correct, however (but only truistically
so), to the extent that he suggests that a claim that is
substantial/complex enough to warrant obtaining the services of an
attorney would be a claim substantial/complex enough to warrant
obtaining the services of an attorney; although acknowledging even
this much would seem to be largely moot, since the option of being
represented by counsel remains avaiable at pretty much any/every stage
in arbitration.
BUT it would not be correct to infer from what "McGyver" says that
(even for a perhaps to the parties complex/substantial case)
full-scale representation by an attorney is always necessary (or
desirable) in arbitration AND (although there can be advance
contract-drafting techniques/provisions that would substantially
mitigate this distinction) it is fair to say that, in general, it is
comparatively easier and more quick and less costly to initiate and
then to process an arbitration to the point of hearing (usually: in
also comparatively much less time) and then also to conduct the
hearing than similar steps would entail in a non-"small claims" court
lawsuit (perhaps especially for more or less routine collection
cases).
Amd while it is of course also open to the OP to try to see to it that
reimbursement-for-attorneys-fees provisions are included in his
contracts with his business' customers who might later default to try
to make the business entirely whole for the costs of lawsuits in a
court if his business were represented by counsel -- provsions also,
of course, available in/for arbitrations -- he did not say whether
politically/economically his insistance on such provisions would be
off-putting to present or would-be customers.
But arbitrators and others well-experienced with arbitration can point
to any number of cases, and also to whole portions of some industries
(e.g., in the textile and apparel and construction industries, among
others), in which one or both of the adverse parties represent
themselves pretty much from beginning to end including at a hearing
(sometimes, again, with pre-hearing attorney advice/input but,
sometimes, too, without such participation beyond what was needed
initially to set the option for such procedures in place) including in
cases involving substantial dollar sums or other potentially
substantial relief to one as against the other of the parties.
Relatedly -- though depending in this respect, too, on whether the
parties will have addressed these issues in their underlying agreement
to arbitrate and on whether they designate a permanent arbitrator or,
if not, which tribunal administrator they choose (e.g., the American
Arbitration Association acting pursuant to its commerical rules?) --
"McGyver"'s "unless the parties agree otherwise" reference to the
"rules of evidence" might be inadvertently misleading, since it is
comparatively very common for that "
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On 18-Oct-2004, nospam@isp.com wrote:
With all due respect, there may be reason for at least a partial
dissent (though [except for some basically trivial disputes in some
courts] not about the need for an agreement in writing if arbitration
is to be the exclusive mode of dispute resolution).
There are many kinds of businesses in/for which an attorney can advise
a client in advance about what sort of arbitration provision to seek,
about how (perhaps: later routinely and comparatively very simply) to
prepare and serve (usually just by mail) a demand to initiate an
arbitration, about how to deal with the arbitrartor selection process,
about how to schedule and prepare for a hearing, perhaps even about
how to prepare and complete and to serve and otherwise process an
approprate application to a court for enforcement of an award in if
need be, etc., etc., all in ways that, in general, are far less costly
and time-consuming and also more efficient and mutually fair and
otherwise effective than a lawsuit in court.
Certainly, however (if obviously), it is also presumptively desirable
for someone in the OP's position to obtain more
knowledgeable/sophisticated legal advice from a lawyer familiar with
commercial arbitration than can be expected based only on his cursory
posting about whether arbitation actually would be desirable for him
and his business and, if so, how to draft an arbitration provision
that probably would be most beneficial while also trying to guard
against provisions that might be prejudiical, depending on the
particular nature of his business and customers and a less vague
evaluation of the sorts of law-related disputes that realistically can
be expected to arise for him.
F'r'instance: an agreement to arbitrate might be desirable, if the OP
is correct to believe that the only unresolved law-related disputes
likely to arise will be simple collection cases, but might not (or,
possibly, would be) desirable if encompassable within the scope of his
would-be arbtration provision are unresolved disputes that the OP
would be better served by having a court resolve; even (and, maybe,
especially) for anticipated collection claims, there may be ancillary
"account stated" and limitation-of-arbitrator authority provisions
that ought be included; bearing in mind what sorts of claims likely
will arise, it might be desirable to address whether explicitly
including some sort of pre-hearing discovery procedures would/wouldn't
be beneficial even if arbitration is otherwise preferred; and, more
generally (and as the OP implicitly notes in part), even if
arbitration is preferable, there are different ways most effectively
to have a customer (or customers in general) agree. Etc., ETC., etc.
(not that, depending on the specific facts relevant to the OP's
business, this sort of Stuff need be complex).
"McGyver" is also undoubtedly correct, however (but only truistically
so), to the extent that he suggests that a claim that is
substantial/complex enough to warrant obtaining the services of an
attorney would be a claim substantial/complex enough to warrant
obtaining the services of an attorney; although acknowledging even
this much would seem to be largely moot, since the option of being
represented by counsel remains avaiable at pretty much any/every stage
in arbitration.
BUT it would not be correct to infer from what "McGyver" says that
(even for a perhaps to the parties complex/substantial case)
full-scale representation by an attorney is always necessary (or
desirable) in arbitration AND (although there can be advance
contract-drafting techniques/provisions that would substantially
mitigate this distinction) it is fair to say that, in general, it is
comparatively easier and more quick and less costly to initiate and
then to process an arbitration to the point of hearing (usually: in
also comparatively much less time) and then also to conduct the
hearing than similar steps would entail in a non-"small claims" court
lawsuit (perhaps especially for more or less routine collection
cases).
Amd while it is of course also open to the OP to try to see to it that
reimbursement-for-attorneys-fees provisions are included in his
contracts with his business' customers who might later default to try
to make the business entirely whole for the costs of lawsuits in a
court if his business were represented by counsel -- provsions also,
of course, available in/for arbitrations -- he did not say whether
politically/economically his insistance on such provisions would be
off-putting to present or would-be customers.
But arbitrators and others well-experienced with arbitration can point
to any number of cases, and also to whole portions of some industries
(e.g., in the textile and apparel and construction industries, among
others), in which one or both of the adverse parties represent
themselves pretty much from beginning to end including at a hearing
(sometimes, again, with pre-hearing attorney advice/input but,
sometimes, too, without such participation beyond what was needed
initially to set the option for such procedures in place) including in
cases involving substantial dollar sums or other potentially
substantial relief to one as against the other of the parties.
Relatedly -- though depending in this respect, too, on whether the
parties will have addressed these issues in their underlying agreement
to arbitrate and on whether they designate a permanent arbitrator or,
if not, which tribunal administrator they choose (e.g., the American
Arbitration Association acting pursuant to its commerical rules?) --
"McGyver"'s "unless the parties agree otherwise" reference to the
"rules of evidence" might be inadvertently misleading, since it is
comparatively very common for that "unless" to be the actually
generally prevalent rule in arbitration rather than the exception
(unless, as he notes, the parties have agreed or the arbitrator[s]
have ruled otherwise); although in this connection, too,
well-experienced arbitrators' core aim (and, e.g., the commerical
rules of the AAA) is to be as fair as practicable to try to achieve a
just result (and so arbitrators, like judges, typically mean it when
they say, f'r'sintace, with repsect to proffered hearsay, "I'll
consider it in evidence [but] for what its worth").
There are a (comparatively) small number of certain kinds of disputes
that are still not mandatorily/exclusively arbitrable and there are
other kinds of disputes that arguably (from one or the other adverse
party's perspective) are better suited to juidical resolution; but, on
the whole (IF the parties intelligently anticipate and attend in
advance to the sorts of "Wh
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.. . .
I've never seen so many words used for something that could be said
in a few
sentences. Is this guy a troll or is he an attorney (that spells
badly) and
this just is how attorneys drivel on. And why do they drivel on like
this?
Is it because they are paid by the hour? To make it sound
sophisticated so
the client is impressed? Why be so inefficient? Why do pleadings
take up
dozens of pages with 98% of it double talk? What's the scam? BTW I'm
not
trying to be a wise guy. I'd really like to know.
Nospam is an attorney, if I recall correctly. But that doesn't mean
that attorneys talk like or write like Nospam. They don't. Nobody
does. Nospam does it for fun (again, if I recall correctly). He is
not trying to sound sophisticated or impress anyone. It's just fun
for him.
Pleadings don't take up dozens of pages, except in rare cases. A vast
majority have page limits, like 15 or 10 or 5 pages, double spaced.
More pages can be used for some purposes, and permission to exceed the
limits may be requested, but more than 15 pages are almost never
necessary.
Pleadings very seldom contain double talk. Sometimes there is
repetition to accommodate procedural rules. Sometimes complex
arguments must be made. Sometimes complex sentences are needed to
make complex arguments. Some people would rather not deal with
complex sentences. But a reader's unwillingness to read carefully and
with concentration so as to understand complex sentences does not mean
that the pleading is not plain English.
When I read Nospam's posts I scan quickly looking for points where we
disagree on something important. Then I can get into an enjoyable
argument. But I agree that his style is not easy reading.
McGyver
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On Mon, 18 Oct 2004, reply@this_newsgroup.com wrote in part:
* * * Why do pleadings take up dozens
of pages with 98% of it double talk?
In real life lawsuits, pleadings that contain anything close to "98% .
.. . double talk" are unusual, and pleadings/motions, etc., are (as
they should be) generally ineffective to the extent that they contain
"double talk" in any noticable amount (even if far less than 98%).
Bearing in mind that most lawsuits arise out of comparatively
garden-variety disputes only rarely presenting difficult issues of law
to be resolved, genuinely capable/effective lawyers are relatedly
aware that judges and their law-clerks generally want to devote as
little time as practicable to any particular lawsuit and that there is
almost always a corresponding benefit to being able promptly and also
tersely in one's pleadings and briefs and related papers to identify
and to demonstrate the applicability of the disputed fact or principle
being advanced.
There are also occasions, besides other than during the course of
litigation, when there can be substantial benefits for an attorney's
client if the lawyer writes in a style that slows down reading,
although how in real life litigation to make a well-informed decision
whether so doing probably would be beneficial for any particular
submission in any particular case is itself a skill that separates the
best from the perhaps even barely borderline competent attorney who
are not aware of or who don't know when/how to do this effectively.
[ Also, what about spelling errors? ]
I'd really like to know.
Unlike, f'r'instance, for very quickly-typed not necessarily
spell-checked newsgroup postings, one does not have to be a Giant of
Jurisprudence to be aware that, on balance, pleadings in actual
lawsuits submitted with spelling errors make a less favorable
impression than those without such mistakes (or to be aware that, for
the most part, actually well-experienced and sensible judges expect
and [as generally applicable rules requre that they should]
essentially just disregard occasional misspellings or the like even in
very substantial lawsuits).
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