Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. From nearly every parties' perspective, optimal dispute resolution occurs when the parties are able to resolve their differences without engaging in mediation, arbitration, trial before a national court and/or some other dispute-resolution mechanism.  It goes without saying, however, that this is not always achievable, at least not from the outset.
  2. Often, alternate-dispute-resolution mechanisms serve to assist the parties in, among other things:
    1. Determining with greater detail and accuracy the facts at issue in the dispute;
    2. Refining their understandings regarding the relative strengths and weaknesses of their respective claims and defenses; and/or
    3. Better understanding the legal, business and/or other practical implications of the range of possible outcomes.
    4. In short, alternate dispute resolution can play a significant pedagogical role, particularly where the disputing parties are from different continents, countries or cultures.
    5. If, however, the parties sincerely believe that some sort of resolution by agreement might be achievable short of the formal and informal processes available through alternative dispute resolution, good-faith negotiations early on in the process can save the parties significant time, money, and aggravation.  Although alternate-dispute-resolution mechanisms are designed to avoid, among other things, the variety of costs associated with litigating and/or defending claims before national courts, any dispute that ripens into formal mediation and/or arbitration can drain valuable time, money, and other resources.
    6. It is for this reason that any person engaged in a dispute that might be resolved through mediation and/or arbitration should take serious stock in the opportunities available for early resolution.  This generally requires a party to take comprehensive, honest, and critical look at all of the actual or potential claims and defenses that might arise out of the dispute.

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