Fall 2006
Volume 3, Number 1
Table of Contents

Representing Individuals in Mandatory ADR Proceedings

By Joan M. Swartz

Mandatory arbitration/mediation clauses are becoming more and more prevalent in contracts today.  The clauses range from just limiting the forum, to limiting damages and procedures available to consumers and employees are becoming common place.  These clauses are becoming standard provisions included by some of America’s largest corporations.  Chances are your cell phone contract has such a clause: your home service contracts, (such as termite protection, lawn care, and more), have such clauses: your credit card contracts likely have similar provisions; many employers require employees to sign such agreements prior to extending an offer of employment.  The proliferation of mandatory arbitration/mediation clauses in contracts is the result of the courts general preference for alternative dispute resolution and their willingness to enforce ADR provisions.  Second, the companies are seeking to avoid judges and juries and their unpredictable nature.  Third, and not to be discounted, companies are seeking to contain and control litigation costs.  

The growth of these provisions, both in the consumer and the employment world, has led to an increasing likelihood you may represent a client in this forum, either as a consumer or in business.    

This article sets forth some of the issues raised by employer/employee and consumer/vendor disputes and ADR mechanisms available to assist the practitioner in representing the employee or consumer effectively in this venue.            

The first step is to review the provisions and the contract itself to determine whether there are grounds in your state to challenge the mandatory arbitration term.  Many limit types of claims, type of damages (generally to compensatory damages), venue for disputes and whether the decision can be appealed.  They are one-sided contracts by design.  The first consideration is whether to challenge the mandatory ADR provision in court.  Depending upon your home state and the financial resources available to you and your client, a challenge to the mandatory ADR clause may be unpractical. 

How you prepare and approach the ADR session will greatly depend upon the contractual requirements and your right to file a claim in a court of law.   It is common that these provisions limit the aggrieved party to mandatory arbitration, with no right to appeal.  In that case, you should:

Understand the Procedure—Many of the ADR providers have specific procedural rules which apply. One of the difficulties is that certain ADR providers have fairly detailed rules and procedures.  It is your task to review the rules and understand them,   The task can be daunting because you are essentially learning another set of rules of civil procedure which will control in your dispute.  When in doubt, ask questions of the case manager.  Be vigilant that the rules are fairly applied to the dispute. Also, as a rule of thumb, the rules of civil procedure in the applicable forum will control when the ADR providers’ rules are silent on any issue that arises.

Understand the Arbitrator Selection Process –learn the selection process used by the ADR provider.  Some allow the parties to mutually select a neutral.  Some select the arbitrator for you, particularly in consumer disputes which often times involve lower amounts in controversy.

Prepare for arbitration like you are preparing for TRIAL.  Consider this is your client’s only shot at an award, many times there is no right to appeal the decision, so prepare just like you would prepare the case for trial.  

Conduct Discovery—if you are not sure whether the rules which control your arbitration allows for discovery, then insist that your arbitrator allow you to conduct reasonable discovery.  Request the right to do written discovery as well depositions.  When in doubt, the rules of civil procedure control.  Ask for a scheduling conference and develop a reasonable schedule so you can accomplish all that is necessary in a reasonable amount of time, giving each side an opportunity to develop their case.

Take Depositions of key witnesses and be prepared to cross examine the opposition’s witnesses.

Consider whether you should use an expert, and if the other side is presenting an expert, take his/her deposition.

Prepare your presentation as if you are presenting your case to a jury—use visual aids for the arbitrator.  A picture is worth a thousand words.

There are some advantages to mandatory arbitration.  You can stipulate to present experts by reports, saving time and money.  Your presentation can be less formal, also saving time and expense.  Many times discovery is less formal and can be done on a more informal basis. Much of a traditional motion practice can be eliminated.  An added benefit is that clients seem to be more at ease in the less formal setting. 

Some clauses are requiring mandatory mediation before any claim can be filed.  In this instance, there are different considerations:

Understand the Procedure—make sure the rules are applied in a fair and unbiased manner and you understand the next step in the event that the ADR fails.  The key is knowing the limits of the procedure and not extending beyond what is reasonable to achieve a result, if possible.

Understand the Mediator Selection Process –it is usually by consent of parties, but ask and understand the procedures in the event the parties are provided a list of mediators from which to select.  It is recommended you do some research regarding any proposed mediators to learn their backgrounds, looking for possible clues regarding their disposition.

Prepare for Mediation—conduct whatever discovery is necessary so all the parties understand the dispute and have enough information and evidence to properly evaluate the case.  You may choose to use this forum to learn more about the other side’s case.  In such case, use the tools available wisely.  If you can, do discovery.  Rules are often times more relaxed so you can get more accomplished.  Learn all you can in this process, it can save you money and time, even if you are exhausting your remedy so you can proceed to court. 

Prepare your Client—it is recommended you use this opportunity to fully evaluate your case and convey that information to your client.  Expectations must be reasonable if you intend to settle the case.  If you and your client decide that you are simply exhausting your remedy to comply with a mandatory mediation requirement so you may proceed to Court, prepare your client accordingly to avoid any potential admissions.  Also, consider using the informal process to gather necessary discovery in a cost effective manner.

Joan practices in St. Louis, Missouri at the Law Office of Joan M. Swartz LLC.  Her office focuses on representation of businesses and individuals in business related matters. She is a 1987 graduate of St. Louis University School of Law.  She is also a trained mediator, serving on United States Arbitration & Mediation Midwest, Inc.’s panel since 2002.  She has participated in a number of mediations and arbitrations both as an advocate and a mediator.  You can contact her at: jms@jmsllc.com.

 

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