Page 76 - M & A Disputes

vide much guidance with respect to the dispute resolution process or rules to be followed, this section of
the practice aid discusses the common components included in conducting the dispute resolution pro-
cess. These components should be used as a guide to establishing a process that makes sense given the
parties’ desires, the complexities of the disputed items, and the economic impact to the parties. To the
extent that the parties can reach agreement about the process to be followed, most practitioners concur
with such a process, subject to timing constraints; however, sometimes, the parties cannot reach agree-
ment about the dispute resolution format and timing. In such instances, the parties often refer to the neu-
tral practitioner to dictate the nature of the process and associated timing.

The common elements of the arbitration process include the following:

 Preliminary conference

 Discovery

 Written statements

 Questions from the neutral practitioner

 Neutral practitioner interviews

 Neutral practitioner procedures

 Hearings or conferences

 Decision and award (reporting)

Preliminary Conference

The neutral practitioner should conduct a preliminary conference or conferences, as necessary, to gain
an understanding of the disputed issues and establish the process that will be followed in resolving the
disputed items. Such conferences can be held in person, but they typically occur telephonically. During
these conferences, the neutral practitioner should discuss the common process components used in an ef-
fort to reach agreement regarding the specific procedures to be employed. The parties should also dis-
cuss and agree on the disputed items that will be submitted for resolution. The goal of these preliminary
meetings is to provide all the information necessary such that the parties can execute an engagement let-
ter that clearly defines the neutral practitioner’s scope and the disputed items and amounts and that es-
tablishes the framework and associated timing for each of the dispute resolution elements. This includes
setting forth specific dates by which each of the elements will be completed. The parties should also
reach a common understanding of where the procedures will take place, including any potential hear-
ings.

Discovery

Discovery is the process by which the parties exchange and obtain information possessed by the other
party or employees. The acquisition agreement, the engagement letter, employed rules, or the mutual de-
sires of the parties can limit the amount and types of discovery. In a litigation environment, discovery
may include the production of documents in hard copy form, e-mails, computer files, and other electron-
ically stored information. The typical litigation discovery process also provides the parties with the right
to interview and depose fact witnesses to aid them in understanding the relevant facts of the case. The

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