By Ari H. Jaffe
All attorneys are familiar with state and federal courts, and most attorneys are familiar with alternative dispute resolution and the well-used institutions of the American Arbitration Association (AAA) and Judicial Arbitration and mediation Services (JAMS). Beyond this, there exist whole other worlds for resolving personal, familial, and business disputes. These alternative fora include private judging, international arbitration, and mediation. Specific industries, such as employment, construction, energy, and banking, also maintain their own arbitration processes. Moreover, depending upon the parties, Christian, Jewish, Muslim, Sikh, Navajo, Puritan, Quaker, Mormon, and Chinese communities in the United States have established religious and ethnic arbitration panels.
When drafting documents to select alternative dispute resolution, or selecting a forum when options exist, attorneys and clients would be wise to consider the following factors:
- Have all parties agreed to the forum, or will it necessitate separate litigation regarding the choice of the forum or the scope of the alternative dispute resolution?
- Are the parties bound to specific dispute resolution mechanisms based upon their industry, religious beliefs, location, or other factors?
- Are parties and their counsel familiar with the rules of the forum?
- Is the forum convenient to the parties and the anticipated witnesses?
- Does the forum have enforceable procedures regarding the joinder of parties, discovery, exhibits, hearing procedures, and sanctions?
- Does the forum have particular substantive or procedural expertise such as either in the technical area of the dispute or the rules to be applied for decision making?
- Are there jurisdictional considerations at issue that might impact what parties can be named or which witnesses can be heard?
- Are the proceedings cost effective?
- Is counsel qualified and experienced in practicing in that venue?
- Are the proceedings governed by due process, precedence, or doctrines of equity?
- Are hearings and decisions public or private?
- Will decisions be detailed or explained?
- Are rulings enforceable in other jurisdictions, and can they be used to collect a judgment?
- Are decisions of the forum binding or appealable, and what standards of review and what avenues of appeal may apply?
- Do the decision makers enjoy judicial immunity to shield them from liability in the event of any wrongful conduct, or immunity from review of an ecclesiastical decision under the Free Exercise Clause of the First Amendment?
Remember, issues involving choice of law are distinct from forum selection, and even forum selection clauses in contracts may at times be unenforceable and subject to judicial review.
The attorneys of Kohrman Jackson & Krantz, LLP are experienced in state and federal court, as well as a variety of arbitration and alternative dispute fora. We are also well versed in drafting arbitration clauses and negotiating resolutions to complex matters in order to avoid the risk and expense of litigation.