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Legal Strategies pp 201–224Cite as

Perspectives on Legal Strategy through Alternative Dispute Resolution

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Abstract

In this chapter, legal strategies are discussed in the context of Alternative Dispute Resolution (ADR), primarily from a Canadian perspective. When ADR was established as an alternative to the traditional and often unsatisfactory dispute resolution regime, i.e. litigation, the element of choice was introduced causing ADR to be recognised by legal and business communities alike as a powerful tool in the formation of strategic resolutions to a client’s given dispute. Early strategies included the ability to avoid, manipulate or even block aspects of the traditional litigation process.

Recently, many ADR legal strategies have become more sophisticated and in turn, appear more elusive, as strategists become aware of the regulatory and public response to previously deployed strategies. Accordingly, by reference to specific examples, the authors present a novel typology of ADR legal strategies by classifying strategies on the basis of their increasing levels of sophistication, with particular emphasis on arbitration. This typology classifies strategies as they move from opportunities implicit in the ability to choose between legal processes (cataloguing; positioning; oppositioning) to opportunities illuminated by legislative or judicial response to other strategies once implemented (flipping) to the assumption of ADR culture into corporate practice to the exclusion of traditional legal players (appropriation).

The authors place ADR legal strategies into such a typology for the purposes of discussion and analysis. They conclude that strategy “captures the reality” of the ADR regime – that is, for many disputants it may not be as much about transforming conflict as it is about appropriating the process for its own objectives.

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Notes

  1. 1.

    L. J. Lott, “Alternative Frameworks for Dispute Resolution” (2002), online: Lott & Friedland Intellectual Property http://www.lfiplaw.com/articles/adr.htm [Lott].

  2. 2.

    See discussion on the change in perception of ADR from “alternative dispute resolution” to “appropriate dispute resolution” in R. M. Nelson, Nelson on ADR (Thompson Canada Limited, 2003) 1 [Nelson]; See also R. H. McLaren, and J. P. Sanderson, Innovative Dispute Resolution: The Alternative (Thompson Carswell, 2008) [McLaren and Sanderson].

  3. 3.

    L. M. LoPucki, and W. O. Weyrauch, “A Theory of Legal Strategy” 2000 49(6) Duke Law Journal 1411, an edited reprint in this text at Chap. 4 [LoPucki and Weyrauch]. The genesis of this contribution was inspired by the basic idea asserted by LoPucki and Weyauch that: “‘Law’ has direct effect through the rendition and enforcement of judgments in actual cases and indirect effect through the anticipation of such rendition and enforcement in hypothetical cases”. LoPucki and Weyrauch concluded that “within the wide range of what is culturally acceptable in legal outcomes, legal strategies are the primary determinants of who will decide cases, under what constraints, and with what consequences”. For fuller discussion as to how legal outcomes are the product of the complex interaction of virtually anything that might persuade decision-makers, see LoPucki and Weyrauch ibid.

  4. 4.

    It is not possible, nor is it the goal of this contribution to give a full account of all elements and processes in the ADR continuum. The focus of the chapter is on legal strategies in arbitration and commercial contracts mainly from a Canadian/North American experience and perspective and seeks to identify, clarify and classify legal strategies in the field of ADR (primarily arbitration) that the authors have observed in operation in North America. For a detailed description of ADR, see for example, McLaren and Sanderson (n 2); See also A. Redfern, and M. Hunter, Law and Practice of International Commercial Arbitration 4th ed. (Sweet & Maxwell, 2004) [Redfern and Hunter].

  5. 5.

    C. Menkel-Meadow, “Mothers and Fathers of Invention: The Intellectual Founders of ADR” (2000–2001) 16 Ohio State Disp. Res. Journal 1.

  6. 6.

    Ibid 3–5.

  7. 7.

    See discussion in C. Menkel-Meadow, “Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History of ADR” (1997) 4 UCLA L Rev. 1613; See also J. M. Barkett, “Tipping the Scales of Justice: The Rise of ADR” (2008) 22(4) Natural Resources and Environment 40 [Barkett]; See also McLaren and Sanderson (n 2) 1.2.

  8. 8.

    McLaren and Sanderson, ibid 1.2.

  9. 9.

    See discussion in C. Honeyman, and A. K. Schneider, A, “Catching Up with the Major General: The Need for A ‘Canon of Negotiation’” (2004) 87(4) Marquette Law Review 640.

  10. 10.

    See S. Gordon, “Five for the Future” (2006) 15(6) National, Canadian Bar Association 45; See also discussion on litigator personality in C. Yablon, “Stupid Lawyer Tricks: An Essay on Discovery Abuse” (1996) 96(6) Columbia Law Review 1638–1639.

  11. 11.

    J. MacFarlane, Dispute Resolution: Readings and Case Studies 2nd ed. (Emond Montgomery Publications Ltd., 2003) 104 [MacFarlane].

  12. 12.

    See generally, Law Society of British Columbia, “Lawyers as Dispute Resolution Professionals: A Discussion Paper” (4 May 2007) 7 fn 2; See also D. B. Lipsky, and R. L. Seeber, “In Search of Control: The Corporate Embrace of ADR” (1998) 1 U. Pa. J. Lab. & Emp. L. 137 [Lipsky and Seeber, In Search].

  13. 13.

    Ibid.

  14. 14.

    See for example discussion on cost–benefit analysis of the effectiveness of existing resolution processes in M. T. Reilly, and D. L. MacKenzie, ADR in the Corporate Environment (CCH Canadian Ltd., 1999) 38 [Reilly and MacKenzie].

  15. 15.

    For example, with respect to international commercial arbitrations, the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards [the “New York Convention”] is considered the foundation instrument of international arbitration. It requires courts of contracting States to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement and, subject to certain exceptions, also requires courts to recognise and enforce awards made in other States. It entered into force on 7 June 1959 and has been signed by over 160 countries. United Nations Commission on International Trade Law, online: 1958 – Convention http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html. Additionally, the UNCITRAL Model Law on International Commercial Arbitration reflects worldwide consensus on key aspects of international arbitration practice including the recognition and enforcement of the arbitral award having been enacted by States of all regions and the different legal or economic systems of the world [the Model Law]. For further information see online: 1985 – UNCITRAL Model Law http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html; See also discussion in C. Cronin-Harris “Mainstreaming: Systematizing Corporate Use of ADR”, 59 Albany Law Review 847 (1995–1996) 13–14.

  16. 16.

    See for example J. W. Cooley, Mediation Advocacy, 2nd ed. (NITA, 2002) Chap. 1, for charts identifying the differences between processes; See also general discussion in A. Kupfer Schneider, “Building a Pedagogy of Problem-Solving: Learning to Choose Among ADR Processes” (2000) 5 Harv. Negot. L. Rev. 113 [Schneider]; See also S. A. Weiss, “ADR: A Litigator’s Perspective” (1999) 8(4) Business Law Today 30; See also McLaren and Sanderson (n 2) 1.1–1.6 and 5.1; See also Reilly and MacKenzie (n 14); See also The Honourable G. W. Adams, Q.C., Mediating Justice: Legal Dispute Negotiations (CCH Canadian Limited, 2003) 155, 319; See also C. A. McEwen, and R. J. Maiman, “Small Claims Mediation in Maine: An Empirical Assessment” (1981) 33 Me. L. Rev. 237 comparing mediated small claims court cases to adjudicated small claims court cases for levels of satisfaction and sense of fairness; See also D. L. Marston, “Project Based Dispute Resolution: ADR Momentum Increases into the Millennium” (2000) 48 C.L.R. (2d) 221 comparing ADR systems to litigation in construction disputes; See also D. A. Fromm, “An Introduction to ADR for Real Estate Practitioners” (1996) 49 R.P.R. (2D) 223 for charts identifying the differences between processes; See also G. Walker, “Bank Recovery – The Development of Judicial and Arbitral Redress Under English Law” (1999–2000) 15 BFLR-CAN 369; See also G. W. J. Ghikas, Q.C. “Why Americans Should Arbitrate in Canada” (2007) Bordner Ladner Gervais, LLP, online: Mondaq, Litigation and Arbitration http://www.mondaq.com/article.asp?articleid=55566 [Ghikas]; See also discussion in L. Riskin, “Decision Making in Mediation: The New Old Grid and the New Grid System” (2003) 79(1) Notre Dame Review 5.

  17. 17.

    For example see discussion in E. A. Dauer, “Confidentiality in ADR”, Erika S. Fine, ed., Containing Legal Costs (Butterworth Legal Publishers, 1988) 17.

  18. 18.

    For example see L. Boulle, “Mediation, Justice and the Legal System”, Mediation: Principles Process Practice, 2nd ed. (LexisNexis Butterworths, 2005) Chap. 5 [Boulle].

  19. 19.

    Ibid.

  20. 20.

    For example, see generally O. Ashenfelter, “Arbitrator Behavior” (1987) 77(2) The American Economic Review (Papers and Proceedings of the Ninety-Ninth Annual Meeting of the American Economic Association) 342; See also J. Rezler, and D. J. Petersen “Strategies of Arbitrator Selection” 70 Labor Arbitration Reports 1308; See also N. E. Nelson, and S. Min Kim, “A Model of Arbitral Decision Making: Facts, Weights, and Decision Elements” (2008) 47(2) Industrial Relations: A Journal of Economy and Society 266; See also D. E. Bloom, and C. L. Cavanagh “An Analysis of the Selection of Arbitrators” (1986) 76(3) The American Economic Review 408; Similarly, disputants may have ability to influence outcome by selecting an arbitral forum more beneficial to the disputant. See for example, discussion in Ghikas (n 16).

  21. 21.

    See discussion in Manitoba Law Reform Commission, Confidentiality of Mediation Proceedings, Report #94 (1996) Chaps. 1 and 3 [Manitoba Law Reform Report]; See also O. V. Grey, “Protecting the Confidentiality of Communications in Mediation” (1998) 36 Osgoode Hall L. J. 667 [Grey]; See also discussion in Nelson (n 2) 138.

  22. 22.

    Ibid.

  23. 23.

    Ibid; See also Manitoba Law Reform Report (n 21); The instrumental use of mediation as an early and inexpensive discovery process has also been described by commentators as a “rejection” of mediation. See M. Keet, Evolution of Lawyers’ Roles in Mandatory Mediation: A Condition of Systemic Transformation 68 Sask. L. Rev. 313; For a discussion on the manipulation of confidentiality and the arbitral process see Barkett (n 7) 43; See also Redfern and Hunter (n 4) 1–53.

  24. 24.

    See Grey (n 21) 677; D. Vaver, “Without Prejudice Communications – Their Admissibility and Effect” (1974) 9 U.B.C.L. Rev. 85, 94; See also J. W. Hamilton, “Protecting Confidentiality in Mandatory Mediation: Lessons from Ontario and Saskatchewan” (1999) 24 Queen’s L. J. 574; See also generally the concurring judgment of Supreme Court of Canada Madame Justice Abella then of the Ontario Court of Appeal in Rogacki v. Belz, (2003) 67 O.R. (3d) 330, (2003), 232 D.L.R. (4th) 523, 177 O.A.C. 133, 2003 CanLII 12584 (ON C.A.), online: Canadian Legal Information Institute http://www.canlii.org/en/on/onca/doc/2003/2003canlii12584/2003canlii12584.html [Rogacki v. Belz].

  25. 25.

    For example, a number of American states have enacted legislation to protect mediation confidentiality as modeled under the American Bar Association’s, Uniform Mediation Act, including the District of Columbia, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont and Washington.

  26. 26.

    Rogacki v. Belz (n 24); See also Chocoladenfabriken Lindt v. Nestle [1978] RPC 287; But also note the “unambiguous impropriety” exception. See Savings and Investment Bank Ltd. v. Fincken [2003] EWCA Civ. 1630, 14 November 2003; For further discussion on American position on confidentiality in mediation see generally C. H. Macturk, “Confidentiality in Mediation: The Best Protection Has Exceptions” (1995) 19 Am. J. Trial Advoc. 411.

  27. 27.

    For example see American Arbitration Association, Procedure M-10 of the Commercial Arbitration Rules and Mediation Amended and Effective September 1, 2007, online: American Arbitration Association, Dispute Resolution Services Worldwide http://www.adr.org/sp.asp?id=22440%20#M-10; See also discussion in Boulle (n 18) Chap. 13, “Training, Accreditation and Codes of Conduct in Mediation”; See also Macfarlane (n 11); See also discussion in J. Manwaring, “Legal Issues”, Julie MacFarlane, Dispute Resolution: Readings and Case Studies 2nd ed. (Emond Montgomery Publications Ltd., 2003) 512.

  28. 28.

    For an example of what might be considered an “oppositioning” strategy related to the timing of mediation to impede the process of resolution see discussion in L. Crush, “The State of Child Protection Mediation in Canada” (1996) 42 C.F.L.Q 191.

  29. 29.

    See W. I. Lundquist, “The Trial Lawyer or Litigator”, J. G. Koeltl ed., The Litigation Manual (American Bar Association, 1989) 181.

  30. 30.

    See for example PetroKazakhstan Inc. v. Lukoil Overseas Kumkol BV (2005) 144 ACWS (3d) 65 (Alta Q.B.); Grammercy Ltd. v. Dynamic Tire Corp. (2004) 71 OR (3d) 191 (SCJ); CanWest Global Communications Corp. v. Hollinger Inc. 2004 CarswellOnt 3291; See also discussion on strategic stay applications in W. G. Horton, “Canadian Arbitration Jurisdprudence: An Update” (2006) 11(2) Arbitration Newsletter: International Bar Association Legal Practice Division 8.

  31. 31.

    For example, English arbitration was largely reformed by the English Arbitration Act 1996 because of court intervention in English arbitrations. See discussion in J. D. M. Lew, L. A. Mistelis, and S. Kröll, Comparative International Commercial Arbitration (Kluwer Law International, 2003) 356–358.

  32. 32.

    The Model Law (n 15). Legislation based on the Model Law has been enacted in more than 55 states including: Australia, certain provinces in Canada, Germany, Great Britain, Greece, India, Iran, Ireland, Mexico, New Zealand, Northern Ireland, Spain, Scotland, and certain states in the United States of America.

  33. 33.

    Model Law (n 15) Article 13.

  34. 34.

    Ibid Article 16.

  35. 35.

    In the UK see for example, Premium Nafta Products Limited (20th Defendant) and others (Respondents) v. Fili Shipping Company Limited (14th Claimant) and others (Appellants) [2007] UKHL 40 para. 26 per Lord Hope of Craighead: “The proposition that any jurisdiction or arbitration clause in an international commercial contract should be liberally construed promotes legal certainty. It serves to underline the golden rule that if the parties wish to have issues as to the validity of their contracts decided by one Tribunal and issues as to its meaning or performance decided by another, they must say so expressly. Otherwise they will be taken to have agreed on a single Tribunal for the resolution of all such disputes”; See also for example, Leicester Circuits Limited v. Coates Brothers Plc. [2003] EWCA Civ. 333 5 March 2003 where UK court penalised applicant for costs for withdrawing from agreed mediation at the last minute; See also Cable & Wireless v. IBM United Kingdom Ltd. [2002] EWHC 2059 (Comm. Ct.) where an escalation clause requiring mediation before litigation is enforceable in English law; In Canada see also Dell Computer Corp. v. Union des Consommateurs et al 2007 SCC 34 and Rogers Wireless Inc. v. Muroff 2007 SCC 35 where the Supreme Court of Canada put the contract for arbitration ahead of public policy considerations for supporting class action proceedings. See below part III(B); See also Onex Bell v. Ball Corp. (1994), 12 B.L.R. (2d) 151 (Ont. Gen. Div.) where a Canadian court referred a dispute to arbitration despite the dispute between the parties that the remedy of rectification may not be one in which an arbitral tribunal was capable of granting; See also Canadian National Railway Co. v. Lovat Tunnel Equipment Inc. (1999), 174 D.L.R. (4th) 385 (Ont. C.A.) where the Ontario Court of Appeal stayed an action on the basis that the words “may refer any dispute…” meant that either party could refer the dispute to arbitration, and once referred, the arbitration was mandatory; In the United States, see also Gilmer v. Interstate / Johnson Lane Corp. 500 U.S. 20 (1991) and discussion in M. H. LeRoy & P. Feuille, “Happily Never After: When Final and Binding Arbitration Has No Fairy Tale Ending” (2008)13 Harvard Negot. Law Rev. 167.

  36. 36.

    The New York Convention (n 15).

  37. 37.

    See C. Menkel-Meadow “Public Access to Private Settlements”, What’s Fair, Ethics for Negotiators (John Wiley & Sons, Inc., 2004) 507–512.

  38. 38.

    Ibid.

  39. 39.

    See description of tension between courts and arbitrators as “trade rivals in the dispute resolution business” in The Honourable J. J. Spigleman AC, Chief Justice of New South Wales (10 August 2007) Address to the Joint Conference of ACICA and ACLA, 3, online: Supreme Court New South Wales, http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ spigelman100807 [The Honourable J.J. Spigleman AC]; See also discussion in J. Uff QC, “Dispute Resolution in the 21st Century: Barriers or Bridges?” (February 2001) 67 Arbitration 4 (Chartered Institute of Arbitrators’ Conference, Dublin, 2001) 4.

  40. 40.

    For further discussion and additional ways to perceive optimisation strategies that arise from choice, contradictions and legal pluralism, see A. Masson, “The Origin of Legal Opportunities” (2009) 2.2, Chap. 3 of this text [Masson].

  41. 41.

    “ ‘Law’ has direct effect through the rendition and enforcement of judgments in actual cases and indirect effect through the anticipation of such rendition and enforcement in hypothetical cases… The legal strategist manipulates those odds in a game of skill, expanding and developing an array of decisions, issues, and problems in a manner calculated to confuse and ultimately overwhelm the opponent”. LoPucki and Weyrauch (n 3) 1412.

  42. 42.

    See generally discussion in R. Lawson, Exclusion Clauses and Unfair Contract Terms, 8th ed. (Sweet & Maxwell, 2005) Chaps. 1 and 2; See also E. J. Zulkey, Litigating Insurance Disputes (Juris Publishing, 2008); See also D. McGarvey, and J. Wong “ ‘Insured v. Insured’ Exclusion Clauses Exemplify Importance of Good Drafting” (The Lawyers Weekly, 2006).

  43. 43.

    S. Lott, M. H. Beaulieu, and J. Desforges, Mandatory Arbitration and Consumer Contracts (Ottawa: Public Interest Advocacy Centre, 2004) 6 [Lott, Beaulieu and Desforges]; See also McLaren and Sanderson (n 2) 5-18.12 – 5-18.17.

  44. 44.

    SCC 34 [Dell Computer].

  45. 45.

    Ibid para. 21.

  46. 46.

    Ibid paras. 3, 12, 56, 94, 194–204.

  47. 47.

    Ibid para. 84.

  48. 48.

    Ibid para. 105; For discussion on how class action proceedings may serve more than procedural ends, see Lott, Beaulieu and Desforges (n 43) 33.

  49. 49.

    See Dell Computer (n 44) paras. 94–101 for the Supreme Court’s analysis as to how the hyperlink to the arbitration clause was not “external” to the contract within the meaning of the Civil Code of Québec.

  50. 50.

    See also Rogers Wireless Inc. v. Muroff 2007 SCC 35 which applied the principles set out in Dell Computer. Although this case is decided under Quebec Law, because arbitration legislation in all Canadian provinces, including Quebec, is based on the Model Law and reflect the New York Convention, it will still have precedential value across Canada. For further discussion see B. Barin, V. Andrighetti, and E. Ouimet, “Recent Developments in Canadian Arbitration Law”, Global Arbitration Review (Law Business Research Limited, 2008) s. 2.

  51. 51.

    Consumer Protection Act, R.S.Q. c. P-40.1.

  52. 52.

    Ibid s. 11.1.

  53. 53.

    See cases, Huras v. Primerica Financial Services Ltd., (2001), 55 O.R. (3d) 449, (2001), 10 C.C.E.L. (3d) 239, (2001), 148 O.A.C. 396 (Ont. C.A.) and Kanitz v. Rogers Cable Inc (2002), 58 O.R. (3d) 299, (2002), 21 B.L.R. (3d) 104 (Ont. S.C.J.) [Kanitz]; But see British Columbia case, MacKinnon v. Instaloans Financial Solution Centres (Kelowna) Ltd. 2004 BCCA 137 (BCCA) where the Court of Appeal allowed a class proceedings certification hearing to proceed in the face of a mandatory arbitration clause [MacKinnon].

  54. 54.

    Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A, ss. 7 and 8 [Ontario Consumer Protection Act, 2002].

  55. 55.

    For fuller discussion on the negative impact of mandatory arbitration agreements on Canadian consumers and preliminary discussion on the status of mandatory arbitration agreements in United States, European Union, United Kingdom, France, Australia and New Zealand see generally Lott (n 1); see also R. M. Alderman, “Pre-Dispute Mandatory Arbitration in Consumer Contracts: A Call for Reform” (2002) 5 Journal of Texas Consumer Law 58 [Alderman].

  56. 56.

    In a case similar to Dell Computer (n 44), the Ontario Superior Court had opportunity to consider whether sections 7 and 8 of the Ontario Consumer Protection Act, 2002 (n 54) which permit consumers to participate in a class action even when the contract contains an arbitration clause (a stay of proceedings in favour of arbitration being required under the Ontario Arbitration Act, 1991), could apply retroactively to consumer agreements signed prior to those provisions coming into force. In finding that the issue was a matter of statutory interpretation, Perell J. found the provisions were enacted in response to the Kanitz case (n 53) where a class proceeding was stayed in favour of the arbitration agreement in the consumer contract and held that the legislation was to apply retroactively as follows:

    In my opinion, these sections were passed to address the mischief that some – it is not necessary to point a finger at all – suppliers of goods and services were using the device of an arbitration agreement not because they genuinely wished to have an alternative to court proceedings to resolve disputes but rather to immunize themselves from the seat of justice altogether. Their eagerness to arbitrate was disingenuous because they knew that just as individual actions by consumers would not be viable, so would individual resort to arbitration not be viable. A disingenuous willingness to arbitrate was being used to thwart at least two of the purposes to be achieved by a class proceeding; namely, access to justice and behaviour modification. The obvious purpose of s.7 and s.8 of the Consumer Protection Act, 2002 was to stop this mischief, but this mischief is not stopped if the legislation is not applied retroactively. Indeed, the mischief is exacerbated by the phenomenon described above of a truncated class in a class action. A retroactive interpretation efficiently and effectively deals with the mischief that the enactment was meant to stop. [authors’ emphasis]

    See Smith v. National Money Mart Co 2008 CanLII 27479 (Ont. S.C.J.) para. 118, online: CanLII http://www.canlii.com/en/on/onsc/doc/2008/2008canlii27479/2008canlii27479.html. On appeal by Money Mart, the Ontario Court of Appeal did not rule on inter alia the retroactivity of the provisions but rather found in favour of the class action based on the doctrine of issue estoppel. See Smith v. National Money Mart Co. 2008 CanLii 746 (Ont.C.A.); See also Mackinnon (n 53) for a similar decision.

  57. 57.

    Alderman (n. 55) fn 13.

  58. 58.

    Title 9 U.S.C. Section 1 et seq.

  59. 59.

    For further discussion see Lott, Beaulieu and Desforges (n 43) 38–39; See also discussion in J. R. Sternlight, “Consumer Arbitration”, Arbitration Law in America: A Critical Assessment (Cambridge University Press, 2006) 158 [Sternlight].

  60. 60.

    Alderman (n 55) fn 13; See also Sternlight (n 59) 140–151; Also note however that there is a growing body of US commentary and statistical research that argues arbitration is better for consumers. See for example, Institute of Legal Reform, “Latest Empirical Study Supports Use of Consumer Arbitration” (US Chamber of Commerce, July 15, 2008), online: Institute for Legal Reform http://www.instituteforlegalreform.com/media/pressreleases/20080715.cfm.

  61. 61.

    Only the state of Alabama has legislation in place outlining that pre-dispute arbitration agreements are unenforceable. Ala. Code 1975 §8-1-41; For fuller discussion see Sternlight (n 59) 157–159; However note that legislation aimed at invalidating arbitration clauses in franchise, employment, auto-purchase and lease and consumer agreements has been introduced in the US House of Representatives. See GovTrack.us. S. 1782 – 110th Congress (2007): Arbitration Fairness Act of 2007, online: GovTrack.us (database of federal legislation) http://www.govtrack.us/congress/bill.xpd?bill=s110-1782.

  62. 62.

    See discussion in Lott, Beaulieu and Desforges (n 43) 40; See also Green Tree Financial v. Bazzle 123 S.Ct. 2402 (US Sup. Ct. 2003); See also Sternlight (n 59) 163–172.

  63. 63.

    “Well drafted commercial arrangements avoid conflict with regulatory regimes, anticipate and therefore avoid disputes and create structures for dealing with the unknown or the unanticipated”. The Honourable J. J. Spigleman AC (n 39) 2; For further discussion on drafting generally see for example, C. J. Menkel-Meadow, L. P. Love, A. K. Schneider, J. R. Sternlight eds. Dispute Resolution: Beyond the Adversarial Model (Aspen Publishers, Inc., 2005) 772–776 citing K. M. Scanlon, Drafter’s Deskbook for Dispute Resolution Clauses (CPR Institute for Dispute Resolution, 2002) 772; T. L. Trantina, “How to Design ADR Clauses that Satisfy Client’s Needs and Minimize Litigation Risk” (2001) 5 Alternatives 137 and 145; N. Blacker, “Drafting the Arbitration/ADR Clause: A Checklist for Practitioners” (2000) 46 Prac. Law. 55–58; S. Davis, “The Critical Importance of Carefully Drafting Arbitration Clauses” (2003) 22 ARELJ 161.

  64. 64.

    Another potential example of flipping might be observed in the strategy whereby a disputant, through legal counsel, proposes an ADR process “in order to provide proof to the courts of willingness to compromise or participating in mediation in order to send messages to the opposition”. For full discussion see P. Brooker, and A. Lavers, “Mediation Outcomes: Lawyers’ Experience with Commercial and Construction Mediation in the United Kingdom” (2005) 5 Pepp. Disp. Resol. L. J. 161.

  65. 65.

    See for example, D. T. Neave, and J. M. Spencer, “Class Proceedings: the New Way to Trump Mandatory Arbitration Clauses? (Ontario, Canada)” (2005) 63(4) The Advocate 495; For further discussion on strategies “fond of reverse causality” see S. Woog, La Stratégie du Créancier (Paris: Dalloz, 1997).

  66. 66.

    D. B. Lipsky, and R. L. Seeber, “Top General Counsels Support ADR: Fortune 1000 Lawyers Comment on its Status and Future” 8(4) American Bar Association: Business Law Today 26 [Lipsky and Seeber, Top General Counsels].

  67. 67.

    Ibid.

  68. 68.

    LoPucki and Weyrauch (n 3).

  69. 69.

    Ibid.

  70. 70.

    Lipsky and Seeber, Top General Counsels (n 66) 27.

  71. 71.

    Ibid 28.

  72. 72.

    Ibid.

  73. 73.

    Herbert Smith LLP in association with Gleiss Lutz and Stibbe, “The Inside Track – How Blue Chip are Using ADR” (Nov. 2007), online: herbertsmith.com http://www.herbertsmith.com/NR/rdonlyres/FA4F7B4B-8246-404A-82CE-EF0019375CA7/5093/6398ADRreportD4.pdf 11 [Herbert Smith Report]. While two of the organizations were characterised as non-users of ADR, six preferred direct negotiations as their primary settlement tool, six were characterised as Ad Hoc users because they “held positive views of ADR processes but considered that a consistent approach to ADR use within their disputes portfolio was either unworkable or unnecessary” and seven were classified as “Embedded Users”. Herbert Smith Report, 5; See also synopsis of the report in C. Ruckin, “Blue Chip Companies are turning toward ADR”, Legal Week (19 Nov. 2007), online: Law.Com [Ruckin].

  74. 74.

    See ibid 5, 29 and 31.

  75. 75.

    LoPucki and Weyrauch (n 3) 1405.

  76. 76.

    See H. D. Lasswell, and M. Smith McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (Martinus Nijhoff/Kluwer Academic Publishers, 1992) 2.

  77. 77.

    It has been said that culture is to an organization what personality is to an individual. Therefore, a strong corporate culture is likely to generate greater influence both inside and outside the company and is considered key to its success. See discussion in H. Makhlouk, and O. Shevchuk “The Importance and the Influence of the Corporate Culture in a Merger and Acquisition Context” 2008 Baltic Business School 50–52, online: DiVA Academic Archive On-line http://www.diva-portal.org/diva/getDocument?urn_nbn_se_hik_diva-415-2__fulltext.pdf; See also M. Schreader, and D. R. Self, “Enhancing the Success of Mergers and Acquisitions: an Organisational Culture Perspective” (2003) 41(5) Management Decision 511; See also E. H Schein, Organizational Culture and Leadership 2d ed. (Jossey-Bass Inc., 1992); See also Reilly and MacKenzie (n 14) 31–33.

  78. 78.

    For further discussion on the advantages of designing and sustaining an alternative dispute system in the company see generally Reilly and MacKenzie (n 14) 19; See also McLaren and Sanderson (n 2) Chap. 10; See also discussion on institutionalising ADR in E. S. Fine, and E. S. Plapinger, eds., Containing Legal Costs (Butterworth Legal Publishers, 1988) s. V.

  79. 79.

    See Herbert Smith Report (n 73) 36–38.

  80. 80.

    See also for example, discussion on belief that commercial arbitration too often mimics court process, Honourable J. J. Spigleman AC (n 39) 2; See also for example, J. M. Sabitino, “ADR as ‘Litigation Lite’ Procedural and Evidentiary Norms Embedded within Alternative Dispute Resolution” (1998) 47 Emory L.J. 1289.

  81. 81.

    Herbert Smith Report (n 73) 19, 4, 7 and 13; See also for example, H. N. Mazadoorian, “Building an ADR Program: What Works, What Doesn’t” (1999) 8(4) American Bar Association: Business Law Today 37; For discussion of findings where the embrace of ADR “demonstrated more than a set of techniques added to those the company uses but represents a change in a company’s mind-set about how it needs to manage conflict” see Lipsky and Seeber, In Search (n 12) 151.

  82. 82.

    Herbert Smith Report (n 73) 5, 31–32.

  83. 83.

    See general discussion in Herbert Smith Report (n 73) 31–33 and 5 and 13; “Both lawyers and arbitrators must be seen to deliver a cost effective service or they may very well find themselves bypassed by the requirements of commerce”. Honourable J. J. Spigleman AC (n 39) 2.

  84. 84.

    Herbert Smith Report (n 73) 23; See also Ruckin (n 73); See also Schneider (n 16) 113–114; See also C. Noble, L. Leslie Disgun, and D. Paul Emond, “What Are the Disputants’ Differences and to What Extent Does Their Antagonism Impede Resolution?” Mediation Advocacy: Effective Client Representation in Mediation Proceedings (Emond Montgomery Publications, 1998) Chap. 7; See also D. Tannen, “The Argument Culture” (Ballantine Publishing Group, 1999); See also C. Menkel-Meadow, “The Trouble with the Adversary System in a Post-Modern, Multi-Cultural World” (1996) 1 J. of Inst. for the Study of Legal Ethics 52–53.

  85. 85.

    See for example discussion in G. A. Derwin, “The Principle of Proportionality in Dispute Resolution: Justice Must be Served” (2008) Canadian Bar Association: Possibilities (Newsletter), online: cba.org http://www.cba.org/CBA/newsletters/adr-2008-2/PrintHTML.aspx?DocId=32050# article1.

  86. 86.

    Another example of appropriation can be observed in the growing practice of arbitral tribunals to continue with their proceedings and rendering awards notwithstanding that an injunction has been issued by the court of the place of arbitration enjoining their proceedings. See cases: Himpurna California Energy Ltd v. The Republic of Indonesia, extracts of the interim award dated 26 September 1999 and the final award dated 16 October 1999 in the ICCA Yearbook of Commercial Arbitration (Vol XXV-2000) at 109–215 and ICC Case No. 10623, 8 European Commercial Case (1985) 101 and discussion in C. Partasides, “Solutions Offered by Transnational Rules in Case of Interference by the Courts of the Seat” (2004) 1(2) Transnational Dispute Management, online: Solutions offered http://www.transnational-dispute-management.com/samples/freearticles/tv1-2-article204b.htm.

  87. 87.

    For example, corporate norms and standards are frequently used by courts to interpret contractual relationships. See for example, British Road Services Ltd. v. Arthur B. Crutchley and Co. Ltd. [1967] 2 All E.R. 785 aff’d [1968] 1 All E.R. 811 (Eng. C.A.); Kendall v. Lillico & Sons Ltd. [1969] 2 A.C. 31 at 113; and Anticosti Shipping Co. v. St. Amand [1959] S.C.R. 374–375; For an example of the influence of corporate lawyers on creation of new legal knowledge and creation of new case-law and statute law see M. J. Powell, “Professional Innovation: Corporate Lawyers and Private Lawmaking” (1993) 18(3) Law and Social Inquiry 423.

  88. 88.

    See for example discussion in C. M. Schmitthoff, “Arbitration: the Supervisory Jurisdiction of the Courts” (1967) The Journal of Business Law 318 [Schmitthoff]; See also Nelson (n 2) 135–138; See also O. M. Fiss, “Against Settlement” (1984) 93 Yale L. J. 1073; See also Redfern and Hunter (n 4) 1–139.

  89. 89.

    Nelson (n 2) 135–138.

  90. 90.

    T. O. Main, “ADR: The New Equity” (2005) 74 U. Cin. L. Rev. 329.

  91. 91.

    For example see discussion in P. M. Wald, “ADR and The Courts: An Update” 46 Duke L. J. 1445; See also J. Macfarlane, and M. Keet, “Civil Justice Reform and Mandatory Civil Mediation in Saskatchewan: Lessons from a Maturing Program” (2005) 42 Alta. L. Rev. 677.

  92. 92.

    See for example discussion on the availability of judicially assisted dispute resolution in Canadian Forum on Civil Justice, “Cross Country Snapshot of Dispute Resolution” (2002) 4 News and Views, online: Issue 4 http://cfcj-fcjc.org/publications/newsviews-04/n4-snapshot.php; See also availability of judicial dispute resolution in Alberta, Canada and discussion in Justice J. A. Agrios, “A Handbook for Judicial Dispute Resolution for Canadian Lawyers” (2004) Canadian Bar Association, online: cba.org http://www.cba.org/alberta/PDF/JDR%20Handbook.pdf.

  93. 93.

    See for example, UK Solicitors Regulation Authority, Civil and Commercial Mediation Accreditation Scheme, online: Solicitors Regulation Authority http://www.sra.org.uk/solicitors/accreditation/civil-and-commercial-mediation-accreditation-scheme.page.

  94. 94.

    See for example, The ADR Institute of Canada, Inc. and its national rules for Commercial mediations and arbitrations, online: Rules & Protocols http://www.adrcanada.ca/rules/commercial_ mediation.html and http://www.adrcanada.ca/rules/national_arb_rules.pdf.

  95. 95.

    See Dell Computer (n 44) 218–222 for discussion on how statutory protection related to public order, for example, was restricted to the effect of the decision and did not apply to the subject matter of the dispute, in this case, a consumer dispute.

  96. 96.

    See discussion in Schmitthoff (n 88).

  97. 97.

    For example, see discussion in Herbert Smith Report (n 73) 14: “We have not got sufficient disputes on the roster to justify using an ECA process. I don’t think the business would applaud me for putting in place a system which could have a cost impact when actually there is no need for it”. General Counsel, Manufacturing/Industrial; Additionally, “Five of the Embedded Users had volunteered to bear the costs of an ADR process to encourage a counterparty to engage, but this was exclusively where the counterparties lacked the financial means to share costs in the usual way”. Herbert Smith Report ibid 25; Additionally, “There is a great deal of work to be done to try again to expand awareness about the benefits of mediation and facilitated dispute resolution. If we had more time and money there are many jurisdictions in which we would like to do more to improve the environments in which we do our jobs to resolve disputes and lower costs to the company. We sell into some of the most difficult countries on the planet. We don’t want to be in disputes with our customers in those places and educating customers about mediation is an important way for us to grow”. Senior Litigation Counsel, Manufacturing/Industrial. Herbert Smith Report ibid 40.

  98. 98.

    Ibid.

  99. 99.

    Ibid.

  100. 100.

    For example, see discussion in Masson (n 40).

  101. 101.

    Lobbying involves the idea that political factors and/or political interest groups/individuals can lobby and shape the development of legislation to provide them with benefits. See for example, discussion on group interest politics in M. Kahan, and E. Kamar, “The Myth of State Competition in Corporate Law” (2002) 55 Stan. L. Rv. 648–686; Here, legislators are seen as having little to do with formulating policy but rather are simply translating into law, the outcome of a particular interest group struggle. See K. Linos, “Social Learning and the Development of Corporate Law” (2006) Harvard Law School 14, online: law.harvard.edu http://www.law.harvard.edu/programs/olin_center/corporate_governance/papers/Brudney2006_Linos.pdf [Linos].

  102. 102.

    Social learning in the context of law can be loosely described as the notion that legal change is driven by actors mimicking one another as information (whether legitimate or not) accumulates in a public domain. Related areas of study use the terminologies of diffusion, policy transfer, lesson-drawing and learning. See discussion in Linos (n 101) 15–17; See also K. Linos, “Note, When do Policy Innovations Spread? Lessons for Advocates of Lesson-drawing” (2006) 119 Harv. Law Rev. 1467; See also generally J-P. Gond, and O. Herrbach, “Social Reporting as an Organisational Learning Tool? A Theoretical Framework” (2006) 65(4) Jour. Business Ethics 359.

  103. 103.

    LoPucki and Weyrauch (n 3) 1412–1413.

  104. 104.

    Ibid 1410.

Acknowledgments

Thanks to The Legal Research Institute, University of Manitoba, whose generous support of this project is gratefully acknowledged.

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  1. Faculty of Law, University of Manitoba, Winnipeg, Canada

    Mary J. Shariff & Vivian Hilder

  2. Department of Student Services, University of Manitoba, Winnipeg, Canada

    Marlene Pomrenke

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  1. de l¿Union Européenne, Tribunal de la Fonction Publique, Luxembourg, 2925, Luxembourg

    Antoine Masson

  2. Faculty of Law, University of Manitoba, Winnipeg, R3T 2N2, Canada

    Mary J. Shariff

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Shariff, M.J., Pomrenke, M., Hilder, V. (2009). Perspectives on Legal Strategy through Alternative Dispute Resolution. In: Masson, A., Shariff, M. (eds) Legal Strategies. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-02135-0_9

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