As in any business, there are times when disputes occur between parties to an agreement or companies involved in a project, employment issues arise or unforeseen events lead to property damage. The use of alternate dispute resolution procedures, both mediation and arbitration, has increased recently for the resolution of otherwise litigated problems that might go to trial. The more widespread use includes private mediation/arbitration in various substantive areas, such as employer-employee relations, intra-family problems, disputes between investors and brokerage firms, construction project claims, insurance coverage disagreements, business torts and a wide variety of contractual matters. As used in this description, the term “litigation” refers to the process of filing a lawsuit, conducting extensive formal discovery and eventually a public trial. “Arbitration” is a method of alternate dispute resolution but is basically litigation with attendant costs including the hiring of the arbitrator(s). “Mediation” differs from litigation and arbitration in that no trial is held, the use of litigation tools, such as discovery, is minimized and there is no public disclosure, therefore no adverse publicity.
Mediation of disputes is perhaps most relevant to the hospitality business, where courtesy and a friendly approach to resolving problems is the custom; learning to “fight nice” is a natural extension.
Benefits of the Mediation Process
When a dispute arises, each of the parties to the dispute has positions and interests which are different, so that they negotiate with a predetermined bias and “reactive devaluation” for some of the suggestions of their adversary. The presence of a neutral mediator in the process serves to dilute such bias.
The proclaimed direct advantages of mediation include:
- The possible expedited settlement of disputes with reduced costs;
- Flexible relief not available in litigation;
- Avoiding an unpredictable result;
- Not establishing an adverse precedent by trial and judgment;
- The confidentiality of the process; and
- Collateral benefits such as no public disclosure of private information, such as business plans, medical data, past criminal history, past product or corporate history, etc.
Keeping such information private protects and preserves ongoing client- customer relationships which might otherwise be damaged and avoids negative publicity. By early attempts at resolution of a dispute, parties can better protect not only “reputation equity” and brand identification, but possibly capital equity and stock price as well. The mediation process saves the expense of extensive trial preparation and trial, the post-trial expense of motions and appeals, and the non-direct financial costs of litigation, such as parties’/witnesses’ time, collateral business costs of delay, emotional effect on parties and employees, and dilution of the brand name. An additional benefit of the mediation process is that early on it may precipitate a more accurate assessment and understanding of the respective true interests of the disputants. Commercial and other agreements can provide for mediation of future disputes before the parties resort to litigation instead of the arbitration provisions now used in many contracts.
Cayuga’s Mediation and Arbitration Services Members can provide the catalyst and neutral mediator to resolve disputes arising out of numerous areas of activity including:
- Management/operations /technical services agreements;
- Franchising agreements and agency issues;
- Equipment purchase agreements/warranty disputes;
- Strategic alliance/joint venture issues;
- Real estate lease and purchase problems;
- Bank debt and capital borrowing;
- Employee/employer issues;
- Tax disputes including executive compensation issues;
- Securities/broker dealer problems;
- Other commercial contract issues with suppliers, etc.;
- Unforeseen damages and/injuries to guests, clients, invitees; and
- Trademark, brand and copyright issues.
Advisory Members
The following members are available through Cayuga to provide a full range of consulting services.
Edward Carrette, Jr. (Lago Vista, TX)
Cayuga Regional Director for Texas, New Mexico, Oklahoma, Mexico and Central America. A bilingual consultant with more than 45 years experience developing, managing, supervising and representing domestic and international hotel development companies, resorts, marinas and eco-tourism projects in the U.S., Mexico, Central America and the Caribbean. With a strong understanding of the complex issues affecting the hospitality industry, Mr. Carrette offers mediation and arbitration services to developers and operators of hotels and resorts, as well as to investor groups, in regard to purchase and management agreements, tax issues, loan agreements and other factors related to financing, development, acquisition and management. He has extensive experience in franchise agreement negotiations, as well as franchise agreement termination/liquidation damage claim negotiations. Mr. Carrette is a skilled and highly trained negotiator, having successfully completed numerous advanced courses in international arbitration and mediation and the Harvard Law School P.L.I. Basic and Advanced Negotiation Workshops. He serves on the Commercial Panel of the American Arbitration Association, and is a member of the State Bar of Texas, American Bar Association and the Association for Conflict Resolution (ACR). See www.mediationtexasusa.com.
Carroll Dubuc (Falls Church, VA)
President of Carroll Dubuc & Associates, P.C., an attorney, and holds an Advanced Mediator and Mentor Mediator Certification by the Supreme Court of Virginia. with several hundred hours of specialized mediation training. He offers services in mediation and arbitration of disputes, facilitation for training in mediation and/or strategic planning, Skills for Lawyers in mediation, legal consultation, investigation, jury selection and expert witness testimony. His 40+ years of experience as a civil trial lawyer admitted in New York, the District of Columbia and Virginia includes representing airlines, aircraft manufacturers/component manufacture, insurance companies, hotel chains, banks and other lawyers in litigations and consultations in the Federal Circuits Mr. Dubuc also served as outside counsel to three international airlines in litigation, and day to day corporate and regulatory matters, and was selected as an Arbitrator by the Department of Justice to hear over 100 of the 911 Victims Fund cases. He has mediated over 500 cases for the Virginia Court System and private clients and has arbitrated over 300 cases for the New York Stock Exchange, The National Arbitration Forum and other private parties.
Cecelia Fanelli (New York, NY)
A Partner of Stroock & Stroock & Lavan LLP, resident in the New York office. Over three decades of experience in complex litigation and dispute resolution, practicing across the country in federal and state trial and appellate courts, and in arbitration, mediation and alternative dispute resolution proceedings. Her practice focuses on commercial litigation relating to the banking, real estate and hotel industries, and she handles major litigation for a variety of clients who are significant players in the hotel industry. She represents such clients domestically and internationally, and they run the gamut from owners of hotels to lenders, franchisees and franchisors. Ms. Fanelli’s experience extends over a wide range of areas, including Antitrust; Business and Contract; Commercial, Financial and Banking; Franchise and Distribution; and Intellectual Property. After graduating summa cum laude from the University of Pennsylvania, where she was elected to Phi Beta Kappa, Ms. Fanelli attended Cornell Law School. She graduated from Cornell, where she was an Editor of the Cornell Law Review.
Charles Ilvento (Miami, FL)
CPA, CHA, CHAE, Real Estate Broker and member of the AH&LA’s Committee on Financial Management; Founding Professor of Florida International University’s School of Hotel Management; owner of a CPA practice specializing in the hospitality industry; and third-generation hospitality industry professional. He has provided seminars for the CMAA since 1974. He conducts club reviews and evaluations from the member, owner and guest viewpoints. Mr. Ilvento is a court-qualified expert, mediator and arbitrator.
Bill Melvin (Cincinnati, OH)
Twenty-three years service as a Magistrate for the Hamilton County Juvenile Court in Cincinnati; an Attorney licensed in Ohio and the District of Columbia. Bill’s background in food & beverage operations includes: owning and operating The Catering Kitchens, which catered events of up to 1000 people; managing multiple Magic Pan Creperie locations; and, F&B comptroller training with the Washington Hilton Hotel. He offers consulting services in operations analysis of F&B properties, including multi-property situations, as well as mystery guest ratings, quality service assurance, total quality management, litigation support and mediation.
