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Our Philosophy: |
• Alternative Dispute Resolution (ADR) is designed to be a faster and more affordable alternative to litigation.
• However, to achieve these objectives, it is essential that the parties commit to some basis Rules of Procedure.
• The objectives, when committing to Rules of Procedure, are to ensure that:
• each party is aware of different procedural options and can make informed choices about them,
• the parties share a common understanding of the process to which they have jointly committed, and
• the matter can proceed at a pace and cost that is acceptable to both parties. |
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| Information, Options, and Assistance: |
| To assist you to understand and agree upon Rules of Procedure, we provide you with information, options, and assistance, as follows: |
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 Information: |
| • Our commitment is to “de-mystify” ADR - to fully explain the process and provide you with information and helpful resources at every step |
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| Options: |
| • This is your process – not ours and not your attorney's. We encourage parties to reach agreement on procedural choices and to feel “in control” of their ADR process. |
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| Assistance: |
| • Parties having a dispute often have difficulty reaching agreement on procedural questions, and these delays and disagreements can undermine their ability to achieve a timely affordable resolution of their dispute. Therefore, where parties cannot agree on a procedural question, we have included a default solution which shall be deemed to apply. The “default rule” is designed to meet the needs of most parties, most of the time. It is the option most commonly selected by parties who are able to reach agreement on Rules. It is designed as a fair solution that allows the parties to move forward with their ADR process. Otherwise, where parties cannot reach agreement on basic procedural questions, and without a default rule, the ADR process would come to an end. |
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| The Rules: |
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| There are 7 key procedural issues that the parties must understand, agree upon, and abide by in order to have a successful ADR process that meets the above objectives: |
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• ADR Process or Methodology
• Resolution Professional Selection Process
• Time Standards
• Alternate Rules
• In-Person or Electronic Meeting
• Audio Record and Transcripts
• Rights of Appeal and/ or Review. |
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| Rules on each of these 5 issues are included in the ElectronicCourthouse Rules of Procedure and are explained below: |
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| i) |
ADR Process |
The ElectronicCourthouse offers 4 different dispute resolution processes – mediation alone, arbitration alone, a stepped “med-arb” process, and early neutral evaluation. Parties must clearly understand the difference between each – for example, if the parties agree upon mediation, their Resolution Professional will assist them to negotiate a settlement. If they choose arbitration, their Resolution Professional render a binding decision. These are very different objective and processes, and the parties must clearly commit to a common methodology. To learn more about each, please see our Glossary , Articles and Resources , Demo and How It Works section. |
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Some parties may have agreed to a methodology in the ADR clause in their business contract and, unless the parties agree otherwise in writing, that process shall apply. If the parties do not have a contract or have not specified their ADR process in their contract, the parties are encouraged to reach agreement and select one of the 4 methodologies noted above. If the parties cannot agree, the default process shall be the stepped mediation-arbitration process. The stepped “med-arb” process allows the parties the chance to mediate but, if unable to reach agreement, the Resolution Professional is empowered to render a decision – often referred to as an “arbitration award”. Under the “med-arb” process, the parties are assured a timely and affordable resolution of their dispute, whether through settlement or arbitration award. |
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| ii) |
Resolution Professional Selection Process |
Most parties to a dispute agree that the most important issue - whether a trial or an ADR process- is the selection of the third party who will mediate or arbitrate the dispute – what we call the “Resolution Professional”. |
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Most parties appreciate some assistance in selecting a qualified neutral professional, but wish to make the final section themselves. Therefore, we will provide you with an initial short list of 3 from our world-class roster and, as always, encourage the parties to agree. The parties may also jointly propose a professional not on our Roster and we will endeavor to engage that person, where appropriate. Finally, where the parties cannot agree, by way of default, the ElectronicCourthouse shall select one professional from the short list. |
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| iii) |
Time Standards |
Time standards – sometimes called “case flow management rules” - ensure that both parties move forward with each step at a pace that is consistent with both parties' expectations and that neither uses delay as a strategy or to simply “drag out” the proceedings to the frustration of the other party. |
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The ElectronicCourthouse offers 3 different time standards for the parties to choose among – the “ emergency track, which is 3 business days in total – from the time the parties file their submission until Resolution Report , a “moderate track” of 30 days and a “Slow track” of 90 days. Parties may also develop their own “time track” that meets their needs. And, of course, if they cannot agree, the default is the moderate track, which reflects the expectations of most parties, most of the time. |
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| iv) |
Alternate Rules |
The ElectronicCourthouse Rules are designed to ensure that, in the absence of other Rules, all key procedural matters have been provided for in a fair manner, in keeping with legal standards. Where the parties have agreed to other Rules, the ElectronicCourthouse Rules shall apply only to matters not addressed in the other Rules, such as time standards or rights of appeal, to ensure that these important matters have been dealt with. Where there is a conflict between these Rules and other Rules agreed to by the parties, the other Rules shall prevail. |
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| v) |
In-Person or Electronic Meeting |
Parties may choose to log into our ResolutionRoom™ from their respective desktops, or to meet in-person in a city agreed to by the parties and their Resolution Professional. There is no additional cost for either option. |
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Electronic meetings in the “ResolutionRoom” are designed to replicate in-person meetings while allowing parties to carry out the meeting from their own offices, anywhere in the world. Meeting in the ResolutionRoom™ facilitates access to top Resolution Professionals in international city centers, and tend to be selected where one or more of the parties, or the Resolution Professional, is at a distance, when the parties do not wish to meet face-to-face, or to resolve smaller claims and less complex matters, with minimal expenditure of time and costs. The ResolutionRoom™ includes voice conferencing to enable the usual voice communications and negotiations, while viewing all the documents on your computer screen. The ResolutionRoom™ provides the parties and their Resolution Professional with secure access to model forms and negotiation support tools, including model agenda, minutes of settlement, secure electronic filing and viewing of submissions, collaborative drafting, interest rate, international time zone and currency calculators. Electronic filing and viewing of documents can reduce photocopying, courier, and document storage costs, while voice conferencing enables creation of a transcript of the oral communications at almost no additional cost. |
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“In-person” meetings are often selected where the parties, their attorneys, and the Resolution Professional, are located in the same city. Unless otherwise agreed to in advance by the Resolution Professional, where parties wish to access a Resolution Professional in another city centre, and meet face-to-face, the meeting will be located in the city of the Resolution Professional, and each party shall be responsible for his or her costs associated with traveling to the meeting, including those of their attorney or witnesses. The ElectronicCourthouse will secure an appropriate meeting facility for the duration of the Resolution Session at no additional cost. During the Resolution Session, the parties may choose to access the ResolutionRoom™ so that they can access the model forms, submissions and supporting documentation, and negotiation support tools, while meeting face-to-face. |
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Where the parties cannot agree on an in-person or electronic meeting, the default is an electronic meeting to ensure that neither party is required by the other to incur extensive out-of-pocket costs associated with travel or other in-person meeting costs. |
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| vi) |
Audio Records and Transcripts |
On consent of both parties, the Resolution Session may be recorded. Recording allows either party to order an audio record or written transcript. The default position, if the parties cannot reach agreement, is that there shall be no recording. |
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| vii) |
Rights of Appeal or Review |
Parties may agree to preserve rights of appeal and/ or rights of review or, like most parties, select mediation or final and binding arbitration. “Rights of Appeal” means that either party may be entitled to appeal the decision of the arbitrator to a court and seek an alternate decision. This is a lengthy and expensive process. “Rights of Review” means that while there can be no appeal on the decision of the arbitrator, either party may be entitled to apply to have the conduct of the arbitrator reviewed and, in highly exceptional circumstances, such as gross negligence, a court may set aside the decision. Generally, if such circumstances were to arise, both parties would share the same view and take appropriate steps, such as reporting the conduct, and review by a court of law would not be necessary. Rights of Appeal and Rights of Review are highly unusual in ADR because, under mediation, a mediator does not render a decision which one could appeal and, under arbitration, parties tend to value a final and binding decision. |
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| We look forward to meeting your ADR needs. |
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©Copyright NovaForum® Inc. The ElectronicCourthouse™ is a division of NovaForum® Inc.
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