HOW TO DETERMINE WHO OWES WHAT AND TO WHOM - Dispute Resolution Journal - Vol. 55, No. 1
Frank Nussbaum is a shareholder with the firm of Sinclair, Louis, Heath, Nussbaum & Zavertnik, P.A., Miami, Florida.
Meah Rothman Tell is an adjunct professor at Nova Southeastern University, School of Social and Systemic Studies, Department of Dispute Resolution, Davie, Florida.
Originally from Dispute Resolution Journal
The “promise” of arbitration is to provide parties with an alternative to litigation, to promote social justice, and to enable parties to participate in and help create a process that is suitable to their needs. Frank Nussbaum and Meah Tell describe the benefits of arbitration and suggest model clauses and provisions that they feel could further refine the process, particularly in the areas of attorneys’ fees and enforcement of awards.
Dissatisfaction with delays in the judicial system and the entry into the system of more and more inexperienced attorneys necessitates that the general public look for alternative dispute resolution methods. If successful ADR processes are not developed, it is possible that the judicial system will deteriorate to a point where attorneys will nostalgically look back to practice in the “old days.”
The huge growth in population has brought with it an increased number of disputes. Coupled with the increasing lack of civility in the legal community, corruption of the courts, and lack of talent, the current judicial system will continue to degenerate. The only solution appears to be alternative dispute resolution systems adjunct to the legal system.1 Arbitration offers the promise of a neutral, equitable arbitrator,2 eager to hear and resolve the dispute, selected by the parties, and empowered to determine the outcome according to a fair set of rules and procedures.3 Arbitration allows the parties and their counsel to design and define their own procedures for the adjudication of their case. For example, counsel can agree on the use of affidavits or videotapes or telephone testimony, in lieu of live testimony; how and when to use depositions; whether to bifurcate the case; and can set other ground rules for the trial of the case. Hearing dates can be scheduled at mutually convenient times and dates to accommodate the parties, their counsel, and their witnesses. Arbitration awards may also be easier to enforce in disputes involving international transactions since international arbitration is governed by specific rules under a single treaty known as the New York Convention on the Recognition of Enforcement of Foreign Arbitral Awards (New York Convention).4