June Email Newsletter–Make ADR Work for You

Improve Litigation Results and Boost Client Satisfaction
June 2014

This is a continuation of the series to introduce 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 increasing pressures and relieve the constraints that lawyers, and their clients, are under–and obtain better results in the process.

Convert “ADR” from an “Alarming Drop in Revenue” to
“Achieve Dazzling Results”–and repeat business (truly)

This month: ideas that can have direct, positive impact on your next case, and all the ones after that:

Mediation: Getting ahead, and staying ahead, of a problem is something we all strive for. ll too often litigators follow the familiar path of plunging forward with the standard strategy of motions, discovery, etc., the intended purpose of which is to put their client in the best position possible as the case develops. That approach leaves results, more often than we admit, to chance–and if not to mere chance, then to an outcome that could quite possibly turn against the client’s interests. How might you stay ahead of that problem?

Revisiting what I have said before, with a further twist: if at the outset of the dispute, recognizing that over 95% of civil cases will settle, work with other counsel to bring in a neutral right away to:

  • Design and implement a process focusing on what specifically needs to be done to obtain the most favorable resolution for all involved in the case, which can yield an early resolution before the dispute has escalated and counsel and the clients have become too entrenched in their positions to engage constructively; or
  • In the absence of a full settlement, narrow the disputed issues to what is really at stake; focus the necessary discovery; reduce the delay and cost of the litigation; and put the case on a track where opportunities for resolution will more readily present themselves as the case proceeds and will allow the parties to address them when they do; or
  • Avoid needless posturing (which can feel good but usually is of no value and can be counterproductive), by breaking the classic cycle of escalation and recrimination right at the outset. Even if you don’t settle or agree upon a streamlined case management plan, you have substantially will have contributed to changing the dynamic of the case through positive steps toward resolution; or
  • In the absence of settlement, obtain an early neutral evaluation that introduces a further dose of reality into the litigation cost/benefit calculus. The process thereby produces value, and makes the involvement of a neutral worthwhile, even in the absence of any agreement.
    Here’s the twist: Cost can be a barrier to moving beyond the default of standard adversary practice. How can we be certain that whatever cost is incurred will produce corresponding value, making cost a minimal or even non-issue? In three ways:

    • Engage the neutral on a fixed fee. That fixed cost can then be factored into the overall discussion and settlement or the narrowing of the issues. In cases of any economic or other significance, that cost pales by comparison to what is at stake, to say nothing of the money, time and distraction that can be spared. High quality private neutrals devoted to advancing the mediation process should be willing to enter into reasonable fixed fee arrangements.
    • In connection with engaging the neutral, agree on a clear set of objectives for the process, which can be incorporated into the written mediation agreement that sets ground rules and protects confidentiality.
    • Include in that agreement a provision that the mediator’s fixed fee is a “cost” that can be awarded by the court in any subsequent award should the case go to judgment, which can shift the cost of positive case management to the non-prevailing party.

Arbitration: Here’s a thought that takes up from my prior discussion of the new “game changing”–in a positive way–AAA Commercial Rules effective for cases submitted after October 1, 2013:

The Rules do not speak in terms of discovery–which is for court cases. They contemplate a “Pre-Hearing Exchange and Production of Information” (R-22), granting the arbitrator(s) firm enforcement authority (R-23), and allowing depositions (which must be approved by the arbitrator(s)) only in very limited instances. That is not cause for panic, and can be a good thing if what you really want (and your client had bargained for) is arbitration instead of a court case.

The key to most effective practice under the new Rules: Adopt the mindset that you will out-lawyer your opposite number by developing your strategy to use a streamlined process to your client’s advantage. For example, perform full and intensive independent investigation; painstakingly prepare and educate your client even beyond what you feel is necessary. That will pay off with less (or no) surprise at the hearing and gain all the more confidence of your client. Arbitration, after all, is changing after years of “litigization.” Adapting to these changes, rather than resisting or skirting them, will serve both you and your client well.

To assist in practice under the new AAA Rules, I have posted on my website: (pwbresolve.com/services/arbitration) a sample (names and identifiers redacted) case management order from a case in which I am sole arbitrator under the new Rules, tracking the elements of Rule P-2.