ADR SPOTLIGHT - ADR and the Business Courts: Value added and innovation

By Richard L. Hurford

Two Two articles in the August 2014 edition of the Michigan Bar Journal are worthy of your consideration.  Brian Einhorn’s President’s Page entitled, The Future of the Species, is a call for all counsel to critically question the efficacy and cost effectiveness of the traditional ways we serve our clients and the need to search for creative opportunities to become “value added.” Doug Toering’s Article, Michigan’s Business Courts and Commercial Litigation, underscores how the innovative practices pursued by the Business Courts in Kent, Macomb, Oakland and Wayne Counties are, in fact, providing new opportunities to become “value added.”  

The upcoming second anniversary of the legislation establishing the Business Courts (MCLA §§ 600.8031 et seq. was signed on October 12, 2012), and the “evidence based practices” pursued by these Courts,  have demonstrated the Business Courts are a de facto form of ADR that allows parties to resolve disputes sooner, more economically and efficiently than ever before.  Indeed, the Business Courts may be a more value added dispute resolution proposition for your clients than defaulting to traditional arbitration in business to business contracts. 

The Business Court Judges throughout the state are engaging in a multiplicity of evidence based practices that include:  differentiated case management, proportional discovery and the early and continuous use of ADR processes.  The importance of early ADR in achieving the mission of the Business Courts is evidenced by the fact the Macomb County Business Court has posted the Taxonomy of ADR for the Courts that provides an overview of 20 different ADR processes that can be right sized and strategically staged.  The Oakland County Business Court has published a grid that identifies various ADR processes that are well suited for use in business cases.  Indeed, the Administrative Orders in all of these Business Courts require the parties to meet and confer on the development of an ADR Plan that is evaluated during the Early Case Conference. 

Business Court Judges throughout the state are increasingly viewing themselves as “public dispute resolution advisors” in addition to their traditional role as trial judges.  As outlined above, the significance of this evolution is very important in understanding how business litigators need to adapt and modify their litigation practices.  

As the role of the Business Court Judges is evolving so too must the practices of attorneys.  Business practitioners who are interested in learning more about the Business Courts and hearing directly from Judges Potts and Alexander (the Oakland County Business Court Judges), Judge Foster (the Macomb County Business Court Judge) and Judge Ryan (one of the three Wayne County Business Court Judges) and what they are expecting from practitioners, are encouraged to attend a seminar on September 30, 2014 entitled, “The New Business Courts: Unique Insights for Litigators and Business Counselors to Achieve the  Client’s Objectives”.  You can register for this half day seminar at https://premibusinesscourts.eventbrite.com.

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Richard Hurford is the president of Richard Hurford Dispute Resolution Services PC and has a wealth of experience in ADR as a seasoned and respected litigator, mediator and ADR neutral, having personally tried or arbitrated more than 75 cases to a verdict or decision. He is an often sought as a presenter on ADR and frequent lecturer for ANDRI, ICLE, the Michigan Judicial Institute, and the National Judicial College. Throughout his career, Hurford has personally participated in hundreds of mediations and other ADR processes as either an attorney or neutral. In addition to his services as a respected neutral mediator, he is also experienced in various ADR processes such as Med-Arb, Summary Jury Trials, Neutral Expert Evaluations, Mini Trials, Dispute Resolution Boards, and providing counsel as a Dispute Resolution Advisor. He is a professional with Professional Resolution Experts of Michigan (PREMi, http://premiadr.com) and a member of AAJ, DRI, MDTC and ACR. Hurford's web site can be accessed at hurfordresolution.com.