What is alternative dispute resolution?

Disputes and conflicts commonly arise in any business.

Veterinary medicine is no different.

When disputes and disagreements grow to a level that requires outsidecounsel or assistance, resolution can become costly.

Anyone who has been through divorce, partnership dispute or situationsof employee litigation understands that this cost can be more than monetary.

Time and money

Time exacted in the course of litigated proceedings is time away frompractice and attentiveness to client communications and patient care.

Besides time and money, the emotional toll can be immense. The processof achieving resolution in a complex court system exacts a price in anger,resentment, worry and feelings of helplessness.

All in all, the worrying affects of prolonged litigation of an unresolveddispute can lead to mental anguish and physical responses that are worseeven than the fees paid for legal assistance.

Fertile ground

In veterinary practice today, the probabilities of disputes are many.Issues arise in the course of employment, marriage, dealing with suppliersand vendors, and equipment leasing arrangements. Client disputes, disagreementsamong landlords and tenants, and property damage are others. Unpaid loansand disagreements with the business owner or family of a neighboring property,as well as the township itself are possible problems that arise. Hospitalexpansion and zoning can result in difficulties.

Proactive prevention

With all of these possibilities, doesn't proactive prevention seem likea reasonable plan?

Veterinarians' and practice administrators' increased knowledge of thelegal aspects of dispute resolution could reduce the cost and angst of theprocess.

One way to engage in practice prevention is to understand how the legalsystem works, and understand the alternatives to how conflicts can be resolved.

One idea that is gaining increased favor in the American business environmentis that of alternative dispute resolution (ADR). Basically, two forms ofdispute resolution exist outside the court environment. These are mediationand arbitration.

In arbitration, each party agrees for any controversy or claim arisingout of a contract to be settled under commercial arbitration rules. Oneor three arbitrators may be used. In arbitration, facts and informationsurrounding the claims of all parties are heard by the arbitrators.

The arbitrators then dictate a solution, including awards to be madeto one party or the other. In agreeing to arbitration, the parties to thisdispute agree that they will faithfully observe the arbitrator's rules,and to abide and perform any award rendered by the arbitrators. A courthaving jurisdiction may have judgment entered on the award in an arbitrateddispute.

An alternative to arbitration is mediation.

In mediation, a neutral assists the parties to the dispute in reachinga settlement. The mediator does not have the authority to make a bindingdecision or award.

Knowledge important

Knowledge of mediation and arbitration methods and their availabilitiesare important from several different standpoints.

First, when you enter into any contractual arrangement, consider includinga clause within the agreement that states how any dispute might be settled.

For example, a standard arbitration clause, as suggested by the AmericanArbitration Association (AAA), states: "Any controversy or claim arisingout of or relating to this contract, or breech thereof, shall be settledby arbitration administered by the American Arbitration Association underits Commercial Arbitration Rules, and judgment on the award rendered bythe arbitrator(s) may be entered in any court having jurisdiction thereof."

Similarly, if mediation is the preferred method of settling a contractualdispute, then a clause can be entered that specifies mediation as the methodto use.

If you are already involved in a dispute or disagreement that you knowto be heading to litigation, use your legal counsel to negotiate a meansto settle the agreement using arbitration or mediation.

A sample agreement regarding arbitration could be worded as in this exampleprovided by the AAA:

"We, the undersigned parties, hereby agree to submit to arbitrationadministered by the American Arbitration Association under Commercial ArbitrationRules the following controversy: (state briefly). We further agree thatthe above controversy be submitted to (1)(3) arbitrator(s). We further agreethat we will faithfully observe this agreement and the rules, that we willabide by and perform any award rendered by the arbitrator(s), and that ajudgment of the court having jurisdiction may be entered on the award."

Conflict management in practice

Understanding arbitration and mediation procedures can also be beneficialin the veterinary practice setting.

Employees who have been trained to understand arbitration and mediationtechnique can be more effective in resolving situations with clients, co-workersand vendors. Many of the techniques provide general understanding of bodylanguage, the reasons conflicts arise and how to improve communicationsthat help resolve such issues.

Mediation and arbitration training teaches the use of effective questioningand listening techniques for discovering facts. Since any conflict can beviewed as constructive, anything we can do to learn better management ofconflict becomes beneficial. Poor management of conflict is more of thedifficulty than conflict itself.

Casualties

By not having the personal skills to manage conflict, morale and motivationmay be reduced. People feel misunderstood and angry. Some individuals willfear that their concerns are not addressed and a perceived adversary's sidehas been taken.

Learning mediation techniques is probably the best starting point fora practice manager in understanding human conflict management.

Mediation is based on a principle of self-determination, that is theparticipants reach voluntary, uncoerced agreement. Good mediation techniquesencourage mutual respect among parties by raising issues and exploring options.

The mediator serves as a neutral facilitator. Practice administratorsand managers need to have good mediation skills so they appear impartialand even-handed, with no appearance of favoritism to one employee or another.With effective training, parties have confidence that their side of a situationis understood and heard.

ADR advantages

What are some advantages of formal alternative dispute resolution?

ADR allows the parties to resolve problems that cannot be talked outbefore ending up in court. As the veterinary profession becomes more medicallycomplex, it also experiences increased exposure to the escalating use oftraditional legal methods at every level of the profession.

ADR is less formal than a day in court and allows parties to vent theiremotions. The whole process is less time consuming than using conventionallegal processes and is more personal and private.

Resolutions tend to emerge more promptly, while animosity is likely tobe dissipated.

In mediation, parties retain control of the outcome. Other legal optionsare not foreclosed if no agreement can be reached.

In arbitration, the aggrieved party receives relief sooner than couldbe anticipated in traditional legal processes. Although some ability toappeal the decision made by the arbitrator exists, it is very limited. Individualsagreeing to arbitration must be willing to abide by the determination ofthe arbitrator.

ADR resources

The AAA - a public service, not-for-profit organization - offers a broadrange of dispute resolution services and education and training. It isheadquartered in New York City, and has offices located in major U.S. cities(140 W. 51st, New York, NY 10020-1203 (212) 484-4000).

The Veterinary Alternative Dispute Resolution Association (VADRA) hasgoals to provide arbitrators and mediators to hear veterinary disputes,through special understanding of the veterinary profession (VADRA, OwenJ. McCafferty, JD, P.O. Box 819, North Olmsted, Ohio 44070, (440) 779-1099.)

Watch for seminars and presentations at various veterinary conferencesregarding mediation skills. For example, Mr. Doug Jack, BA, LLB, will bespeaking at the 2003 Western Veterinary Conference about practice ownershiprelationships, dispute resolution and mediation techniques.

A variety of easy-to-read and common sense books regarding mediationand arbitration skills are available. One resource we find especially helpfulis "From Conflict to Cooperation: How to Mediate a Dispute," byDr. Beverly Potter (Ronin Publishing, Inc., P.O. Box 1035, Berkeley, CA94701, published in 1996).

Your situation

In the process of updating buy/sell agreements, practice purchase documents,promissory notes, employment contracts or any other agreement, rememberthe options for arbitration and mediation at a later date as an alternativeto the normal legal recourses.

Ask your attorney if including such a clause within the agreement wouldmake sense within your particular situation. Your attorney can provide guidanceas to arbitration and mediation resources that will fit your needs, or referyou to appropriate resources.