If you find yourself embroiled in a cannabis-related dispute, it may be obvious that litigation isn’t the optimal course of action. However, choosing an alternative dispute resolution mechanism may not be easy, especially if deep, seemingly irreconcilable differences exist between you and the other party to your dispute. Fortunately, there are a range of unique alternative dispute resolution services that can be tailored to the particular circumstances of your dispute and the respective aims of the parties involved.
Alternative dispute resolution mechanisms are typically divided into the two broad categories of mediation and arbitration, but within these categories there exist a variety of particular configurations that incorporate or shed some aspects, as appropriate.
Mediation
In mediation proceedings, the disputant parties attempt to work together to arrive at a mutually acceptable agreement that will put an end to their dispute. Rather than adversaries, the two parties approach this process as collaborators, communicating their respective sides of the conflict with an eye to greater mutual understanding and respect. This can help the parties fashion a compromise that allows them to each get what’s most important to them while sacrificing only what’s necessary for the other party to receive the same.
The parties are assisted by a neutral mediator whose function is to orient the discussions, ensuring they unfold as efficiently as possible. Depending on the nature of the dispute and the intentions of the parties, the mediator’s role can be more facilitative or evaluative.
A facilitative mediator simply assists the parties in communicating their respective interests and negotiating a resolution, without taking a side one way or the other. An evaluative mediator, in contrast, will, after considering the positions of both parties, offer an opinion (often grounded in some expertise relevant to the subject matter at hand) as to whose position has greater merit, legally, morally, or practically speaking. While non-binding, this judgment may inform the parties’ approach to reaching a resolution, forcing them to adopt more realistic positions and thus narrowing the gap that must be overcome before an agreement is reached.
Arbitration
In arbitration proceedings, the disputant parties respectively submit their evidence and arguments to a neutral arbiter, whose ultimate ruling the parties agree in advance to be bound by. Unlike in mediation proceedings, and more akin to traditional litigation, the parties’ relation to each other is adversarial in nature, each attempting to persuade the arbiter that the other is mistaken in some way as to the facts or law at issue.
Unlike in traditional litigation, however, the parties are not encumbered by the formalities imposed by the rules of civil procedure in making their arguments to the arbiter – they are free to communicate their side of the conflict in a manner they find most advantageous or personally satisfying. Moreover, the arbitration process is usually more efficient and expedited, allowing the parties to focus on the heart of the dispute and bypass the technical and procedural issues that inevitably pop up in litigation.
The ruling imposed by the arbiter may be of his/her own fashioning, or, alternatively, the arbiter may be tasked with choosing between two outcomes respectively proposed by the disputant parties on the basis of which is more appropriate in the circumstances (also known as “baseball arbitration”). In either event, the parties agree at the outset to defer to the ultimate ruling and abide by its terms.
Choosing Between the Two
Meditation and arbitration each pose advantages and disadvantages that must be weighed against each other in relation to the facts of the dispute and the positions of the parties.
For example, if your dispute involves a party with whom you wish to maintain a professional or personal relationship moving forward, mediation’s emphasis on cultivating mutual respect and understanding may be more attractive in contrast to the zero-sum nature of an arbitral ruling, which, depending on the outcome, may lead to lingering resentment that has the potential to impair the relationship beyond the resolution of the dispute.
On the other hand, if your dispute is of a time-sensitive nature such that a quick resolution is a priority, the prospect of a binding outcome unilaterally imposed by an arbiter may be preferable to the relatively time-intensive negotiations involved in mediation, after which it is still not guaranteed that an ultimate resolution will be agreed upon. This is especially the case where the parties are significantly far apart in their understandings of the facts/law in dispute, for which mediation may only do so much.
A further concern that should be given particular attention in the context of cannabis-related disputes is the relative confidentiality of these two forms of alternative dispute resolution. Whereas the content of a mediation is kept in confidence between the disputant parties and the mediator, an arbitration may generate a record that may become public depending on if further action is taken by one of the parties. Given the stigma still attached to cannabis in many contexts, as an illicit substance under federal law, you may wish to avoid being publicly associated with cannabis-related activities and thus prefer to air the details of your dispute in the private setting that mediation offers.
By Justin Hovey
(Justin is a 2nd year law student and summer student for CansultED. CansultEd is an alternative dispute resolution company that operates exclusively in the US Cannabis space.)