NCJ Number
94333
Journal
St John's Law Review Volume: 58 Issue: 1 Dated: (Fall 1983) Pages: 69-91
Date Published
1983
Length
23 pages
Annotation
This discussion of alternatives to dispute settlement involving commercial transactions identifies areas where inherent and potential conflicts often arise and then discusses the applicability of several forums to such disputes.
Abstract
Controversial issues in business disputes commonly spring from differing expectations and may occur over the interpretation of contractual terms, the sufficiency of contractually required performance, or both performance and interpretation combined. Lawyers must examine these areas to assess the quality of the controversy, but must also consider the business relationship of the contracting parties and their time frameworks. An analysis of these needs must be coupled with an understanding of types of dispute resolution forums available outside litigation. Arbitration offers privacy, convenience, a reduction of formality, and flexibility and often may be the most appropriate mode of resolution for all three kinds of contract disputes. The use of appraisal would suggest that the parties have been unable to solve their differences consensually and now look to appraisers to give finality to the resolution of the difference. Some State laws permit disputants to resolve their conflicts in a faster, more informal manner by circumventing traditional courtroom procedures. This alternative may be employed in a performance controversy involving a contract term which had been incorporated by the parties into the agreement in recognition of traditional judicial principles. In the rent-a-judge approach, parties petition the court for an order to submit their dispute to a referee and then hire a referee, usually a former judge, to hear the dispute. The system offers privacy as well as the benefits of arbitration, with the advantage that experienced arbitrators can be secured. Mediation is best used in a first attempt to settle differences and can expedite subsequent proceedings by clarifying issues. The paper includes 80 footnotes.