Daily Journal Publishes Marder, Rabbani, Kim Article on Alternative Dispute Resolution Models

“A unique alternative to court resolution of high-exposure, complex disputes,” an article by Akin Gump litigation partner Neal Marder, senior counsel Ali Rabbani and associate Shelly Kim, has been published by Daily Journal. The article discusses alternative models of dispute resolution being pursued by contractual parties in lieu of costly court proceedings.

The authors note that mediation or arbitration have been, historically, seen as “traditional” methods of alternative dispute resolution, but note that each has drawbacks. Instead, they note, parties have “increasingly taken advantage of two hybrid options…One option is ‘med-arb’ which begins with the parties first attempting to negotiate a settlement of their dispute with the assistance of a mediator…The second and lesser-known hybrid is ‘arb-med’…in which a neutral evaluator functions initially as an arbitrator and renders a binding decision that is not initially disclosed to the parties. The arbitrator then transitions into a mediator to help the parties resolve the dispute on their own.”

The authors point out potential drawbacks to each hybrid, however, and note that they “recently explored a third hybrid, coming certain elements of ‘med-arb’ and ‘arb-med’ without the risk of a binding award.” The article details the process and notes the benefits of this process, including resolution in an expedited timeframe and lower cost, as well as a few potential risks, including the inapplicability of rules of evidence, which could allow parties to “get away with” more than they might in court.

They conclude, “Companies should consider including pre-litigation dispute resolution provisions in their contracts that allow for the parties to craft their own preferred method of dispute resolution that is not confined to just binding arbitration or mediation. The hybrid options discussed above may turn out to be ‘just right’.”

To read the article in its entirety, please click here.