Proskauer on International Litigation and Arbitration:
Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
- 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.
- Often, alternate-dispute-resolution mechanisms serve to assist the parties in, among other things:
- Determining with greater detail and accuracy the facts at issue in the dispute;
- Refining their understandings regarding the relative strengths and weaknesses of their respective claims and defenses; and/or
- Better understanding the legal, business and/or other practical implications of the range of possible outcomes.
- In short, alternate dispute resolution can play a significant pedagogical role, particularly where the disputing parties are from different continents, countries or cultures.
- 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.
- 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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