Magazine article Dispute Resolution Journal

A Road Map to Commercial ADR

Magazine article Dispute Resolution Journal

A Road Map to Commercial ADR

Article excerpt

A Road Map to Commercial ADR The Client's Guide to Mediation and Arbitration: The Strategy for Winning By Peter Silverman. ABA Publishing (www.abanet.org), 2008. Softcover. 112 pages. $29.95.

Each year business books make it on to the best seller list. The public continues to crave advice on how to win in business in today's global world.

Peter Silverman's The Client's Guide to Mediation and Arbitration: The Strategy for Winning is a welcome addition to the literature for business people who want to better understand mediation and arbitration. Drawing on his experience as a businessman, attorney, arbitrator and mediator, Silverman highlights the pros and cons of mandatory negotiation, mediation, and arbitration, and objectively discusses what role these processes could play in resolving business disputes.

The first section discusses alternative dispute resolution (ADR) provisions in contracts. Before incorporating a provision that jumps right into mediation or arbitration, Silverman advises businesses to consider adding good-faith negotiations by corporate executives as a first step. This step could result in the resolution of the dispute without any need for mediation or arbitration. According to Silverman, a mandatory negotiation period could be especially helpful when a goal is to maintain a business relationship that the parties have had for years. On the other hand, it could prevent a party from acting swiftly to enforce important rights. Even if there is a mandatory negotiation period, one or both parties may refuse to negotiate in good faith. Silverman concedes that it is unlikely that one party could judicially compel another to comply with this requirement.

The second section of the book discusses the concept of "winning" in mediation. He urges the parties to identify their settlement goals in accordance with their business strategy and interests, and consider their worst alternative to a negotiated agreement (WATNA) and best alternative to a negotiated agreement (BATNA), concepts that were pioneered by Ury and Fisher in Getting to Yes. Silverman introduces other acronyms, such as a "ReTaZ" (a reasonable target zone for settlement) and the "LiStaR" (likely statistical result of settlement alternatives). He encourages each side to make these calculations for itself and its adversary to help in deciding whether to settle and for how much.

One of the most exciting and innovative aspects of the book is the section on "deal mediation," a process not much used today. Silverman suggests that "deal mediators" can provide real business value to the traditional business negotiation. …

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