Investigatory Arbitration and Mediation
Many business disputes can, and should be resolved, through a remarkably straight-forward and cost-effective procedure that would likely cost 70 percent less than business litigation while providing higher quality decisions. Specifically, Gary Kaplan's Executive Guide explains that many business disputes should be investigated and decided by a single Arbitrator. Instead of each party retaining an attorney to investigate the facts and law and then adversarily present a version of those interpretation of fact and law to a passive arbitratror, judge and/or jury, the parties would jointly retain an investigatory Arbitrator to conduct his or her own investigation. In the Executive Guide, Gary Kaplan refers to this approach as investigatory mediation and arbitration or IMA.
Because IMA departs from the adversarial advocacy that underlies traditional common law means of resolving disputes, it will raise some eyebrows and doubts. The substantial benefits and cost savings afforded by IMA, however, could provide compelling benefits to modern businesses seeking to resolve good faith disputes in a cost effective, confidential, and reasoned manner.
IMA would invariably cut dispute resolution cost dramatically by eliminating wasteful expenditures on, for example, redundant factual investigation and research, discovery disputes, trials and posturing. In the place of duplicative procedures and posturing that do little to promote quality decisionmaking, in IMA, an Investigatory Neutral would both investigate the facts and decide the dispute based upon applicable law. Throughout the process the Investigatory Neutral would interact with the parties to advise them of progress and preliminary conclusions. The purpose of such interactions would be to enable the parties to understanding and consider their respective risks of moving forward and thereby to encourage settlement and to encourage business or other non-traditional means of resolving the dispute.
IMA would not only reduce cost of dispute costs to a fraction of current costs, but would improve the quality of final resolution and decisions, because (i) the Investigatory Neutral would be selected based upon his or her suitability (in terms of expertise and experience) for efficient understanding and resolution of the dispute; (ii) the Investigatory Neutral would have the time, resources, and incentive to obtain a thorough understanding of the relevant facts and law; (iii) The factual record would be developed for the purpose of resolving the dispute rather than to paint a party in a particular light or posture; and (iv) the parties could interact with decisionmaker rather than simply put on a show for him or hear and then await the reviews of the parties’ performance (in the form of a verdict).
A diagram of the Executive Guide's IMA process follows:
