ADR Spotlight ... ADR and the business courts: Value added and innovation

Two articles in the August 2014 edition of the Michigan Bar Journal are worthy of your consideration.  Brian Einhorn’s President’s Page entitled, The Future of the Species, is a call for all counsel to critically question the efficacy and cost effectiveness of the traditional ways we serve our clients and the need to search for creative opportunities to become “value added.” Doug Toering’s Article, Michigan’s Business Courts and Commercial Litigation, underscores how the innovative practices pursued by the Business Courts in Kent, Macomb, Oakland and Wayne Counties are, in fact, providing new opportunities to become “value added.”

The upcoming second anniversary of the legislation establishing the Business Courts (MCLA §§ 600.8031 et seq. was signed on October 12, 2012), and the “evidence based practices” pursued by these Courts,  have demonstrated the Business Courts are a de facto form of ADR that allows parties to resolve disputes sooner, more economically and efficiently than ever before.  Indeed, the Business Courts may be a more value added dispute resolution proposition for your clients than defaulting to traditional arbitration in business to business contracts. 

The Business Court Judges throughout the state are engaging in a multiplicity of evidence based practices that include:  differentiated case management, proportional discovery and the early and continuous use of ADR processes.  The importance of early ADR in achieving the mission of the Business Courts is evidenced by the fact the Macomb County Business Court has posted the Taxonomy of ADR for the Courts that provides an overview of 20 different ADR processes that can be right sized and strategically staged.  The Oakland County Business Court has published a grid that identifies various ADR processes that are well suited for use in business cases.  Indeed, the Administrative Orders in all of these Business Courts require the parties to meet and confer on the development of an ADR Plan that is evaluated during the Early Case Conference. 

Business Court Judges throughout the state are increasingly viewing themselves as “public dispute resolution advisors” in addition to their traditional role as trial judges.  As outlined below, the significance of this evolution is very important in understanding how business litigators need to adapt and modify their litigation practices.  

As the role of the Business Court Judges is evolving so too must the practices of attorneys.  Business practitioners who are interested in learning more about the Business Courts and hearing directly from Judges Potts and Alexander (the Oakland County Business Court Judges), Judge Foster (the Macomb County Business Court Judge) and Judge Ryan (one of the three Wayne County Business Court Judges) and what they are expecting from practitioners, are encouraged to attend a seminar on September 30, 2014 entitled, The New Business Courts: Unique Insights for Litigators and Business Counselors to Achieve the  Client’ s Objectives.  You can register for this half day seminar at https://premibusinesscourts.eventbrite.com.
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Trial Judge
Short Term and Long Term Goal:  Prepare for the trial (that in 98% of cases will not take place)
If held, the Early Case Conference may be moderated by someone other than the trial judge to establish a trial date that drives other case milestone (i.e., motion and discovery cut off, case evaluation, and the trial date).
Presides over ongoing discovery disputes and motion practice.
Case evaluation just prior to the trial date may be the only ADR activity.  If case evaluation is unsuccessful in resolving the case, late stage mediation may be ordered.
Legal rights and remedies are the sole focus.
98% of cases do not proceed to trial and resolve late in the litigation process.
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Trial Judge and Dispute Resolution Advisor
Short Term and Long Term Goals:  Assist the parties to resolve the dispute if possible (short term) and identify those cases that are “likely” to proceed to trial and prepare for trial as necessary (long term).
Early Case Conference moderated by the Business Court Judge to establish a Differentiated Case Management Plan and triage cases for appropriate ADR strategies throughout the life of the case.  Often the parties will be asked to identify a neutral who will assist the parties in the pursuit of ADR initiatives throughout the life of the case.
Stages proportional discovery and motion practice to support the ADR strategies agreed upon and uses ADR processes as appropriate to resolve discovery disputes and streamline the litigation.
Multiple and early ADR strategies explored throughout the life of the case (see the Taxonomy of ADR).  More than just mediation and case evaluation are explored and often the parties are not required to engage in traditional case evaluation at all.
In addition to legal rights and remedies, interest and needs based solutions are explored through ADR.
The majority of cases do not proceed to trial and resolve as early as possible in the litigation process.
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Richard Hurford is the president of Richard Hurford Dispute Resolution Services PC and has a wealth of experience in ADR. He is a professional with Professional Resolution Experts of Michigan (PREMi, http://premiadr.com) and a member of AAJ, DRI, MDTC and ACR. Hurford's web site can be accessed at hurfordresolution.com.

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