‘Innovations in Mediation and Arbitration–You Can Use’
Improve Litigation Results and Boost Client Satisfaction
This is the second monthly letter in a continuing series. The goal is to plant or reinforce ideas that you may not have fully considered and that you can use immediately to have a direct, positive impact on your practice. As I have said, the time is now to do even more to address the pressures and relieve the constraints that lawyers, and their clients, are under.
Convert “ADR” from an “Alarming Drop in Revenue” to
“Achieve Dazzling Results”–and repeat business (Truly)
For Mediation (Case Management and Most Effective Advocacy):
The problem: The escalation of a dispute is highly damaging to reaching a favorable, timely resolution. In litigated cases the level of conflict, and accompanying acrimony, often escalates reflexively, which is downright antithetical to the interests of your client. This cycle of escalation clouds counsels’ and the parties’ objectivity and decision-making, causing costs to skyrocket and opportunities for positive outcomes to disappear.
Obvious, you say? Yes, but escalation still happens too often–resulting in tens of thousands of dollars of unnecessary cost in a single case and millions system wide. There is almost always something you can do to rein that in.
- Don’t take steps which could initiate or intensify an escalation spiral. When planning strategy, develop a list of alternative approaches, then choose the one that accomplishes your objective with reduced likelihood of reflexive countermeasures. It’s simple and effective.
- When making case strategy decisions, unless there is some overriding urgency, wait a few days for all options to emerge and heated emotions to cool off. Talk through those options with your client, such that s/he can more fully appreciate the real downsides of taking action to obtain ephemeral emotional satisfaction.
- Recognize that antagonism impairs communication, which cannot be helpful to your client. Take charge of the conversation and information exchange through reason rather than stonewalling.
- Be aware that a dispute that mutates into a blood feud loses sight of underlying interests–i.e., what is really at stake–for your client. Harmful escalation is more difficult to reverse than to avoid in the first place.
- Returning to the suggestion in my previous bulletin, get a mediator involved early in the case as a means of focusing the dispute and finding the most direct route to a consensual or adjudicated outcome.
- Remember: Escalation is self-destructive (unless you’re practicing scorched earth, which can be myopic unto itself) and eventually painful for the client, defeating effective advocacy and causing client disaffection.
For Arbitration: This is a simple idea that is not suited to all cases but bears reinforcement due to significant efficiencies and cost savings. Even when your arbitration agreement calls for a panel of three arbitrators, consider working with opposing counsel to agree on a single arbitrator. The fear of a “runaway” sole arbitrator can be quite overblown, particularly if the selected neutral is an experienced arbitrator knowledgeable in the subject matter at issue. Statistics of the American Arbitration Association indicate that a panel of three arbitrators charges, on average, almost five times more in fees than a single arbitrator for similar cases due to the cost of the interaction among panel members. When finality of result and a streamlined process are prevailing considerations, one arbitrator may well be preferable to three. Scheduling complexity diminishes, and you can decrease the likelihood of a “split the baby” result (reflecting a compromise among the panel) for which arbitration has been criticized and even avoided. The new AAA Commercial Rules (at adr.org), which I discussed in the last bulletin, encourage using a single arbitrator rather then defaulting to three.
Please contact me if you would like more information relating to the bulletin summaries.