Business Has Alternatives to Superior Court Delays

October 2001

By Michael R. Callahan*
For New Hampshire Business Review


In the next 15 months, the amount of jury trial time available to New Hampshire litigants will be reduced by one third. The Chief Justice of the Superior Court so announced last week. Because of the speedy trial rights of criminal defendants, the preference afforded those cases will further reduce the available jury trial time otherwise provided to civil litigants.

While this limitation on a primary dispute resolution alternative will affect many, it also provides them with a new opportunity to consider and employ productive alternatives to the jury trial. Arbitration and mediation held much to commend them even before these new limitations on judicial access. With increasing regularity sophisticated parties are deciding to arbitrate disagreements arising out of their relationships.

Generally, courts have warmly endorsed this alternative to court resolution of such disputes. This year the United States Supreme Court held in Circuit City Stores, Inc. v. Adams that nearly all employment disputes can be decided by arbitrators when contractual arrangements so provide. Other pending cases and proposed legislation may limit the reach of this case, but there is no doubt that the case further confirms the willingness of courts to defer to some dispute resolution process other than themselves.

Arbitration is the voluntary submission of a dispute to a selected private decision maker. The decision or award is a lawful substitute for that of a court or a judge. While many contracts often contain arbitration clauses at their inception, arbitration remains an alternative throughout the history of the dispute. Even after the suit is brought, it would be rare for a court not to defer to parties' announced desire to submit their dispute to some other decision maker. The same is true of mediation. Recently, the presiding judge in the Microsoft litigation encouraged the parties to seek settlement. She announced that after 2 weeks if there was still no settlement, she would require them to participate in 3 weeks of mediation.

Mediation is the insertion of a third person between contending parties to facilitate settlement. The mediator seeks to persuade them to adjust or settle their disputes. Mediation provides an important psychological moment when the disputants may pause and rationally consider alternatives to the continuing pursuit of resolution through a time-consuming and expensive trial.

If mediation succeeds, the parties can return to more productive agendas that are often postponed or handicapped by the pending matter. In a world connected by e-mail, faxes and cell phones, the business timeline has been dramatically shortened. Market niches that were once available for years may now evaporate in months, weeks, or even hours. Lingering disputes often remove the participants from the marketplace or inhibit advantages that might otherwise hold.

Both arbitration and mediation provide an economic means to bring matters to a prompt conclusion. In arbitration the decision makers are selected by the parties, and generally the sophistication of the panel allows for an accelerated presentation. A sophisticated panel also lessens the risks that the process will be compromised by misunderstanding, passion, or other prejudice. Moreover, in arbitration the parties are not controlled by a template of discovery requirements which may be disproportionately extensive and expensive. Often both sides present any and all exhibits prior to hearing and the evidentiary requirements of the judicial system are frequently limited or avoided. Usually both sides are less frustrated and conclude their presentations knowing that their story was heard, even when not accepted.

Mediation offers similar advantages when parties wish to pursue settlement. Selection of a mediator with experience in the subject matter of the dispute has obvious advantages. A mediator with appropriate expertise can reduce the costs of the process and can effectively use his or her experience to bring about the desired resolution.

Speed and cost alone are sound reasons to opt for arbitration or mediation. The additional benefit of privately resolving disputes instead of airing personal disagreements in a public trial further enhances the attractiveness of these options. Given an accelerated economy, it is even more valid today to repeat the old saying, "justice delayed is justice denied." With these new limitations on jury availability, there are even fewer reasons to avoid the measurable benefits of employing other private means to end our disputes.

*Michael R. Callahan is admitted in New Hampshire.

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