Dispute resolution practices are moving in a decidedly positive direction as the term “alternative” becomes outmoded. Approaches other than a default to litigation have become mainstream. These trends will continue to develop as we move into 2014:
Focus on Interests. Mediation finds its way into most cases now, as attorneys find they can obtain superior results for their clients and more effectively manage their own litigation practices. There remains a primary reliance on evaluative forms of mediation, expecting the mediator to predict the outcome in court or put a “value” on a case. Litigators still do not often favor a primarily interest-based negotiation, which I have written about here in 2013. Change will remain slow given the evaluative bent that lawyers bring to the process. Change will come, however, as attorneys experience more regularly the opportunities presented by a focus on interests, as opposed to positions, to move beyond impasse in particularly difficult cases.
Earlier. The ABA has commissioned a blue ribbon “Planned Early Dispute Resolution (PEDR) Task Force”. The group recently has published a “User Guide for Planned Early Dispute Resolution” that can be found on the ABA website, americanbar.org. The Guide is a well-crafted “how to” resource for devising and implementing strategies, particularly for businesses, to significantly reduce cost and develop routes around “litigation as usual”. The Preface to the Guide summarizes the rationale for pursuing resolution earlier in a case than may occur through prevailing practice:
Although the vast majority of legal disputes are resolved without trial, the traditional litigation process leading to settlement is a long slog. In an all too common pattern of litigation-as-usual, settlement comes only after the lawyers engage in adversarial posturing, the litigation process escalates the original conflict, the parties’ relationship deteriorates, the process takes a long time and a lot of money, and none of the parties is particularly happy with the settlement.
The Guide walks through the causes of escalation and excessive cost, and lays out solutions, grounded in early case assessment and deliberative design of resolution processes tailored to address and satisfy the objectives of the parties.
Lawyers who practice the precepts and adopt the methods in the Guide will be serving their clients more effectively, and with less cost, which has become all the more important in this era of even more rigorous litigation cost containment and management.
In my practice as a neutral, I find that early mediation remains the exception, not the rule as promoted by the PEDR Task Force. Again, that will change because early engagement around interest-based resolution opportunities offers so much value and opportunity to clients and their counsel alike to avoid the escalation and entrenchment, and even animosity, that litigation can bring. Such escalation makes disputes more difficult to settle with the kind of favorable, business- and mutual interest-orientation that the parties can productively pursue before a case has taken on a life of its own.
Early mediation can be very effective even if the case does not settle. Issues can be narrowed to what really is at stake, focusing the dispute and reducing the cost.
Since most law schools teach the efficacy of interest-based, value creation approaches, attorneys coming into practice will embrace these practices as a means of distinguishing themselves in order to attract clients, even more fully taking hold of resolution and cost reduction opportunities from the outset of a dispute.
Quicker. I wrote a full column here a couple of months ago on the new American Arbitration Association Commercial Rules, which became effective as of October 1, 2013. Looking ahead to 2014, these new Rules can be game changers in restoring arbitration to its intended role–as an efficient, less costly and more expeditious alternative to litigation for disputes in which the parties are most interested in a fair, reasonable and final result. See adr.org for the complete new Rules.
Two of the most notable provision of the new Rules:
- Granting even greater authority to arbitrators to preclude importing standard litigation practices, such as protracted motions and discovery, into arbitration. The Rules expressly recognize that arbitration should be more efficient, and to accomplish that goal, the arbitrator can limit the process to that which is necessary to allow for a fair presentation of the case for hearing and decision.
- Providing that, for cases in which a claim or counterclaim exceeds $75,000, “the parties shall mediate their dispute” pursuant to the AAA Mediation Rules, concurrently with the arbitration with a neutral who is not the arbitrator. While the rule is subject to an opt out election should a party choose not to mediate, the presence of the rule opens the door to mediation, which counsel otherwise could be reluctant to initiate so as not to express lack of confidence in their case.
Going forward, the degree of impact of the new Rules in reining in excessive practices in arbitration is yet to be told. The adoption of the new Rules, however, is milestone in restoring arbitration as a means of efficient resolution.
Of note is the fact that the International Institute for Conflict Prevention & Resolution (CPR), which is essentially a collaboration of corporations and outside counsel formed around improving means of dispute resolution, adopted its own administered arbitration rules as of July 1, 2013. The rules give more leeway to the arbitrator and the parties to fashion their own proceedings, including the scope of discovery, than do the new AAA Rules. CPR is doing good work, and its website, cpradr.org, is an excellent resource for guidance on a variety of resolution issues. Its rules do not respond as directly as do the new AAA Rules to the need to diminish the “litigization” of arbitration. Not giving the arbitrator specific authority and tools to manage and control the scope and procedures in arbitration risks lapsing into the kind of unnecessarily protracted process that the AAA Rules are designed to, and will, prevent.
More Carefully Designed. One subject that has received considerable attention over the past couple of years through bar seminars and articles is the drafting of clauses for pre-dispute agreements, providing for how the parties will tackle and resolve a dispute that may arise out of a business agreement. Recognition has become widespread that commercial deals can be enhanced, and in some cases saved, by more thoughtful and thorough attention to dispute resolution provisions. A one sentence generic, boilerplate requirement of resolution by arbitration does not suffice. Drafters can build in “stepped” resolution provisions that take advantage of the gamut of processes–from initial negotiation between decision-maker principals, to mediation as a pre-condition to litigation or arbitration, to arbitration with a more detailed determination of venue, number of arbitrators, controlling law, etc.
The best and most exhaustive template I have seen for this purpose can be found on the cpradr.org website, titled an Economical Litigation Agreement. The form agreement is a thoughtfully conceived checklist that offers a creative path through disputes and is designed to allow for resolution at the earliest time and he lowest cost.
The ELA can serve as a valuable resource to drafters of dispute resolution clauses. Not all of its several provisions will be suitable, or even feasible, for a particular matter. Using this type of checklist or resource can focus the drafters on options and frameworks to consider as part of the negotiation of the underlying agreement so as to fulfill the needs of their clients in the event a dispute arises.
Individually and together, these advances in dispute resolution practices will continue to move forward in 2014—as we lose the “A” in ADR. Since Getting to Yes was first published over 30 years ago, there has been considerable attention given to implementing within legal disputes methods that can serve clients’ interests and objectives more effectually—at lower cost to achieve better results. Change can be slow, since old habits die hard and economic influences often do not favor early resolution without “litigation as usual.” Change is happening, though, such that, perhaps not by the end of 2014, but within the next few years these approaches will be what most attorneys use to accomplish “DR” for their clients.