This article addresses the effective use of alternative dispute resolution (“ADR”) concepts in the healthcare context. To do that, we must first define ADR. That may seem too simplistic for the sophisticated reader of this article, but many an experienced attorney confuses ADR concepts such as mediation and arbitration. In order to deal with ADR concepts and provisions, and write and interpret those effectively, one must clearly understand ADR’s parameters.
Let’s start with the difference between mediation and arbitration. Mediation is just a formalized way of viewing settlement discussions. Arbitration is a private, and often binding, adjudication of a dispute that supplants judicial resolution. The two concepts are worlds apart and understanding that is necessary to draft meaningful ADR provisions.
In some contexts, mediation can be broader than that prior description. Most of the time it is not. Under the vast majority of mediation rules (assuming any mediation rules even apply), a mediator is simply someone chosen by the parties to facilitate a settlement discussion. In most instances, the mediator has no authority to force the parties to do anything. Some mediation rules require the mediator to report to the court or arbitration service with jurisdiction over the case about: (a) whether the parties’ made a good faith effort to seek potential resolution; and (b) whether the matter settled.
As described throughout this article, where the parties have agreed to arbitrate their dispute, that is the provision and process that needs the most attention because arbitration is where such parties either win or lose their case. Thus, throughout this article, we will pay much more attention to arbitration than mediation.
This article is primarily focused on:
1. Why parties might want to contractually select arbitration as opposed to resolving their dispute in court; and
2. Various considerations and options parties should examine when drafting ADR provisions, particularly arbitration clauses.
Part II of this article addresses threshold questions of what law and provisions govern whether and how parties arbitrate. Part III then explores why parties might want to agree to arbitrate their disputes rather than litigate in court. Finally, Part IV explains various ways to plan for and tailor ADR clauses to best serve the parties’ objectives.
