Practice Guide: A Handbook for Resolving Business Disputes (Second
Published by the American Bar
Association Section of Dispute
Resolution; $39.00; ISBN:
1-59031-169-8, 222 pp.;
by Philip Zimmerman
business will at some point have a dispute with a vendor, customer,
or employee. Generally, the options for resolving such a dispute
are an adjudication by a third party resulting in either a complete
victory or a complete loss, or a settlement in which both parties
are satisfied with the result.
choose the latter option would benefit from reading the revised
and expanded edition of the Mediation Practice Guide
by Bennett G. Picker. The new edition enlarges the sections contained
in the 1998 edition on preparing for and conducting mediation
by providing tips for both parties and counsel. It also adds two
new appendices that cover an outline for a negotiation plan that
may be used in most types of disputes, and a table of useful Internet
resources for dispute resolution.
more than lives up to its subtitle, “A Handbook for Resolving
Business Disputes.” The author made the book user-friendly
by keeping it simple and providing checklists whenever possible.
He covers the key mediation issues of suitability, preparation,
the benefit of a complete background in all phases of mediation
to his writing. In addition to being a senior partner of the Philadelphia
law firm Stradley Ronon Stevens & Young, LLP, where he is
chairman of its ADR Practice Group, he serves on many U.S. and
international neutral panels, including the American Arbitration
Association, the CPR Institute for Dispute Resolution, and the
World Intellectual Property Organization.
The use of
mediation is growing for many reasons; as a legal analyst quoted
in the book says: “Every case is a matter of ‘principle’
until the client receives the third or fourth bill from his counsel
at which time they spell the word differently (‘principal’).”
points out that the alternative to a negotiated settlement is
less rosy than the parties and their attorneys may have thought
before the mediation started. It is the rare attorney who will
predict a complete victory, and the cost for going through discovery,
depositions, and trial, and possible appeals, usually seems much
higher to the client than they had anticipated.
stresses the importance of selecting the appropriate mediator
for the needs of the party and the particular dispute. For example,
mediators should have subject-matter knowledge in addition to
mediation experience. Subject-matter knowledge can save the cost
of hiring experts and reduce the time spent by attorneys and parties
in educating the mediator about the industry that the dispute
is particularly useful in the private meetings the mediator holds
with each side (caucuses), which take place after the initial
joint session. At that time, the mediator usually tries to give
the parties a reality check by reviewing the strengths and weaknesses
of their cases. An informed mediator can do more in this regard,
because only the party’s own attorney is present with his
client and no one else can present the other party’s viewpoint.
For example, if the case is primarily one involving complex legal
issues, an attorney/mediator would serve best, but in a case involving
complex accounting or financial issues, a CPA/mediator would serve
One of the
book’s 12 useful appendices provides model ADR clauses for
business agreements. Others include the American Arbitration Association
and CPR Institute of Dispute Resolution mediation rules and procedures.
Possibly of the greatest use for businesses considering whether
or not to litigate or mediate is the ADR Suitability Screen used
by the author’s law firm.
this book, those unfamiliar with mediation are in position to
decide whether and how best to mediate. For those experienced
in mediation, it provides a practical resource for improving their
Zimmerman, APM, CPA, is in private practice as a mediator
and arbitrator in New York and New Jersey. His website is www.mediatorpz.com.
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