There is a general feeling of dissatisfaction with both litigation and arbitration in the franchise community.

Rupert Barkoff, a "Dean" of Franchising, puts it this way:

Litigation is a lousy way to resolve disputes, and arbitration is, in my opinion, not much better.
We can try to give meaning to phrases like "good faith" and "unconscionability," but in the end all we accomplish is to create more legal battle fields on which the parties can feud.

Michael K. Lewis is an Adjunct Faculty member for the Harvard Program of Instruction for Lawyers Mediation Workshop and his colleague, Robert H. Mnookin, in his book "Beyond Winning" has an explanation for why litigation is lousy, costly and unsatisfactory:

In litigation it can sometimes seem as if each side is frantically preparing for a trial that will never take place.

One side drafts a complaint, files motions, takes depositions, goes through document production, prepares for trial --all with the knowledge that it will probably settle the case.

And each side knows this.

It is like an arms race: each side builds up an arsenal, hoping never to use it.

Each needs the arsenal to signal a readiness for battle. But each would also benefit if both sides could agree to reduce the weapons stockpile. The problem is that neither side wants to disarm first.

How can we move beyond the limitations of litigation or arbitration as the sole method of solving franchise disputes?



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