Arbitration and Mediation:
Today’s Solutions for Business Disputes™
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Prior to being an arbitrator, mediator and court appointed special master, Merton Marks had a successful career of more than forty years as a partner in one of the country’s most prestigious law firms, appointment as an Assistant Attorney General of Arizona, service as a judge pro tempore on the Arizona Court of Appeals and in the U.S. Army as a captain in the Judge Advocate General’s Corps. While in law practice, he represented both individuals and the world’s largest corporations in civil litigation and saw first hand the advantages to his clients of arbitration and mediation as a means of resolving disputes. In 2001 he retired from private law practice to devote full time to providing arbitration, mediation and special master services in business disputes and litigation. With offices in Scottsdale and Tucson, Arizona, he has been appointed as an arbitrator in a broad range of complex cases throughout the United States involving commercial and corporate disputes, securities, construction defects, real estate, insurance and reinsurance coverage and bad faith, product liability and personal injury claims. As a mediator, he has used innovative techniques in resolving disputes. His decisions as a court appointed special master decisions have been affirmed by courts.
Why has the use of arbitration and mediation increased so significantly in recent years? Over two hundred years ago, Voltaire observed, “I was only ruined twice in my life. Once when I lost a lawsuit and once when I won one.” Any business executive, individual, corporate counsel or litigation attorney who has been through a lengthy trial will agree with that observation. While some cases will unavoidably result in trials, civil lawsuits are unquestionably the worst possible way to resolve business disputes. And the more complex the dispute, the greater the cost of the litigation and the longer it takes. The advantages of arbitration and mediation over court litigation are significant- -
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- Arbitrations and mediations are private and confidential proceedings held behind closed doors instead of a trial in court open to the public and media with the result broadcast on the evening news and published on the front page of tomorrow’s newspaper;
- The parties have the ability by contract to require mediation and arbitration of disputes, choose the place of the arbitration or mediation and the substantive law and procedural rules that will govern an arbitration thereby avoiding unfavorable venues and laws;
- The parties can choose arbitrators or mediators with specialized knowledge of the issues in dispute;
- Less technical rules of procedure apply in arbitrations than in court litigation- - -rules designed to “get it done”, not delay the case;
- In arbitrations, motions practice and discovery proceedings (depositions, interrogatories, requests for production, etc.) are limited resulting in more expeditious disposition of cases and less expense to the parties compared to court litigation that may drag on for years with corresponding expense;
- Unlike the destructive effects of litigation, arbitration and mediation can preserve the parties’ business relationships so that they can go on to their next transaction;
- In mediations, the parties can craft their own solutions which cannot be done by judges, juries and arbitrators.
- Arbitration and mediation are truly “Today’s Solutions for Business Disputes.” TM
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