From Michael Zeytoonian’s Dispute Settlement Counsel Blog
I’ve been looking at baseball arbitration lately to consider including it in the dispute resolution services we offer at the Zeytoonian Center. Upon further review, it should be added to our DR spectrum. It is a great complement as an option for closure in some of the other processes, like IDR and civil Collaborative Law.
In fact, civil Collaborative Law’s response to the addition of baseball arbitration as a closure option to its process may soon echo the memorable, if a bit sappy, quote of Jerry Maguire: “You complete me.” But we’ll come back to that in the next blog post.
We’ve made it a point at the Zeytoonian Center to exclude arbitration from what we do, in contrast to most ADR providers for whom arbitration is a major offering. Our reason for excluding arbitration is clear: It’s not consistent with one of our core philosophies: the “sovereignty of the client”. In all our processes and work, the clients make the ultimate decisions on how the dispute will be resolved. Our clients have direct input into the process used, the pace of the process and in determining the options for resolution. We don’t determine the resolution – our clients do. We advise them, we are their advocates, guide them through efficient processes and help them reach good settlements.
Arbitration does not leave the determination, or for that matter the process, to the parties. The arbitrator makes those decisions. The only input the parties have in typical arbitration is to choose the arbitrator. Since most arbitration is binding, they don’t even have the chance to appeal the arbitrator’s decision if it is wrong on the facts or the law. Parties in arbitration completely abdicate their sovereignty and control. That is why it’s not included in what we do here.
We also don’t include arbitration because it has become too much like litigation in many cases. It’s no longer streamlined and efficient. It often includes discovery, motion practice, hearings, presenting evidence, witnesses, briefs or memoranda of law. Arbitrations that stretch out over a year or more are not unheard of. Some lawyers have observed that arbitration is pretty much like litigation except that the parties pick (and pay for) the judge and suggest that it should no longer be included in the ADR spectrum. Like litigation, it’s not a sustainable process.
We believe the parties in the dispute should ultimately decide how it gets resolved. They should select the right process, with our guidance and recommendations, and should make the final decisions about what the resolution will look like. Dispute resolution needs to be efficient in time and cost, needs to preserve important relationships and not drain the resources and emotions of the parties. The process should and can be agile and creative enough to come up with solutions that really fit the needs and meet the interests of the parties.
So why does baseball arbitration fit and belong here? In baseball arbitration, the arbitrator does not render a decision of his own; he chooses the best and most reasonable proposal for resolution offered by the parties. The party that offers up the better proposal for resolution is going to be the ultimate decision-maker. The arbitrator simply chooses which proposal one was better. Discovery, motion practice, taking testimony and presenting evidence at hearings are not part of this process. The parties do the work of developing a proposal for resolution, knowing that the arbitrator will choose the better of the two, so if one is too extreme and unreasonable, it will not be chosen. It keeps the parties honest and reasonable.
There are some variations of baseball arbitration. One we are developing here we’ll name “IDR” or “All-Star” arbitration. We should probably come up with a substitute name for “arbitration” as well. We’ll discuss those in our next blog post. These variations of baseball arbitration are all consistent with our approach and philosophies. If used with IDR and Collaborative Law, they provide closure to processes if the parties can’t resolve the dispute on their own. As you’ll see next time, this is very cool stuff or as my colleague Paul Faxon often says about Collaborative Law, “This is very powerful, and truly revolutionary.”
Next time –“IDR” or “All-Star” arbitration; why they can complete IDR or civil Collaborative Law.
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