One of the oldest truisms in the legal world is that no one but the attorneys win when disputes end up in court.
And with the price of good lawyers skyrocketing and many of the nation’s court dockets more backlogged than ever before, that’s probably never been truer than it is today.
With public revulsion over lawsuit mania perhaps at its peak, even the leading attorneys’ guild, the American Bar Association, has in recent years gotten quite serious about alternative dispute resolution, or ADR, however potentially destructive that might be to their incomes. (One of its top advocates nationally has been Cleveland’s Jose Feliciano, a partner in the firm of Baker & Hostetler and a former White House fellow who several years ago crafted an innovative ADR program in Cleveland.)
Everywhere, it seems, attempts to settle disputes through means other than traditional lawsuits are blossoming. Much of the construction industry, for instance, has begun writing anticipatory ADR provisions into contracts before the work is executed. These clauses spell out how disputes between contractors and clients are to be settled should they occur.
Even the federal Equal Employment Opportunity Commission, for years the toughest cop on the litigation/regulation beat, is getting in on the act. The agency has been aggressively pushing mediation and arbitration of late as a way to winnow its huge backlog of cases. When EEOC Chairwoman Ida Castro came to Cleveland recently, she announced that a special ADR pilot program will soon begin in Cleveland and one other city.
The latest player on the ADR scene is the Better Business Bureau, whose local chapter hears as many as two dozen mediation and arbitration cases between consumers and businesses each month. Actually, says Greater Cleveland BBB vice president of operations Sandy Prebil, the organization has been informally mediating disputes between businesses and consumers for years.
Telephone intake workers are routinely trained on how to counsel irate consumers to push their business disputes. But more recently, she says, the national organization has been putting into place a more formal arbitration and mediation process.
The local chapter, which covers the counties of Ashtabula, Lake, Geauga, Cuyahoga and Lorain, offers free mediation and arbitration service for its 3,500 dues-paying members (dues are set at a sliding scale, but most members pay $325 annually). In fact, “members are sort of committed to going to arbitration or mediation with us,” says Prebil.
For a $200 fee, nonmembers can also take part, though no one can recall that happening recently.
Mediation cases are nonbinding and can only be pursued with the agreement of both parties. Arbitration, however, is binding.
“We do many more arbitrations,” Prebil adds, about 15-20 cases a month vs. just one or two mediations. “Strangely, people like someone to tell them what to do. People get dug in and are sure they’re going to win,” she says, and thus tend not to worry that they’ll be obligated by the ruling should the arbitrator rule against them.
Most cases are launched with a complaint from a consumer, though some arbitrations have sprung from inquiries by a business. Most of the hearings take place at the BBB’s downtown offices (though not during Major League Baseball playoffs, since the office overlooks Jacobs Field, and parking is at a premium then), but some have taken place at a consumer’s home, especially in cases in which the dispute centers on home improvement work.
With the heavy imbalance between mediations and arbitrations, the local BBB has a stable of about five mediators and nearly 35 arbitrators prepared to hear cases. Most tend to involve disputes over amounts of $1,000-5,000, often involving home improvement work, “but one case I can think of earlier this year was for $20,000,” says Prebil.
For more information about the Greater Cleveland Better Business Bureau’s mediation and arbitration procedures, consult the group’s Web site at www.cleveland.bbb.org, or call the BBB at 216-241-7678.
John Ettorre ([email protected]) is a senior contributor at SBN.
