by Andrew Flake
A busy lawyer friend grumbled to me recently, with just a hint of bah-humbug, that he hadn’t had nearly enough time to answer all of his holiday mail and take down holiday decorations yet, much less come up with New Year’s resolutions. Ever solution-oriented, I pointed out that he was engaging in the New Year’s Resolutionist’s mistake, putting too much pressure on himself for immediate change. Instead, I suggested he could usefully ask himself what he’d like to be doing by the end of 2022.
I don’t know how much he appreciated my unsolicited reassurance and good cheer, but in the same spirit, here are a few suggestions and approaches to dispute resolution I hope we might employ more in 2022:
- Keeping the big picture in mind: Too often, once commenced, a piece of traditional litigation takes on a life of its own, becoming more about the process, about scoring short-term wins in discovery or motion practice, and about the objective on winning on a particular claim or issue. Lost is the concept of a big picture resolution that accomodates all interests in the case. To avoid this kind of tactical myopia, calendar some time throughout the case to revisit dispute-resolution options: periodically assess where any settlement discussions stands, what initial assumptions may have changed or been modified and how, and what options for resolution (neutral case-evaluation, mediation or even later submission to arbitration) may be present that were not present before.
- Talking more to clients about their ADR clauses: The best time to think through ADR is before we need ADR — meaning that prior to an actual dispute, we have the best opportunity not just to determine how a dispute will be handled, but to prevent one entirely. Consider options like in-house ADR programs, requirements in contracts for good-faith discussion and other techniques of phased resolution, and putting more specific parameters around an arbitration process that fit the nature of the dispute, like specific limitations on discovery, timing requirements or elections for expedited-track disposition in certain cases (like those involving smaller amounts of money), and requirements for arbitrators with relevant business and industry expertise in your area.
- Talking earlier to clients about their ADR options: It is easier to resolve a case if clients know and have time to consider their options on the front-end: what litigation is going to look like and cost, in detail; what time and resources, in addition to money, will be expended; what settlement means, including that it can occur at any time. As lawyers, we help both our clients and the overall administration of the courts when we look to ways to resolve cases, so having these conversations is a client and a public service. This is especially true today, with a building backlog in many courts of civil cases that need to be tried. With that awareness, and an understanding of what the modes of ADR are, for example, how a mediation works, it is often the clients who will press the lawyer to pursue that option, or at least be receptive when their lawyer makes it.
- Conducting our mediations earlier: In waiting until the immediate pre-trial period to mediate, as often happens, parties can miss opportunties to save substantial litigation dollars. How many cases are truly ones that require written discovery or even depositions before a settlement discussion is helpful? Really, not many. Especially in commercial disputes, the parties are aware of the issues and the general nature of the documents and communications that led to or that unerpin it. And if an early settlement occurs of a claim that might have yielded a higher recovery, that also means the claimant avoided a lower recovery, along with the costs of an expensive continued lawsuit. The overall success rate for civil mediation is quite high, and even an unnsuccessful first attempt at mediation, because of the dialogue between the parties and the very focus on resolution as opposed to adversarial and zero-sum wins, can be a small win, leading to a later successful settlement.
- Using post-dispute submission agreements: Once a complaint has been filed, mediation is not your only trial alternative. Just because a matter is in litigation, and there is no arbitration agreement, does not mean the parties cannot later decide to arbitrate, even after filing. By agreement, the parties can move their dispute into arbitration, selecting their rules of engagement and their decisionmaker, and thereby gaining confidentiality, expertise in decisionmaker, flexibility in discovery procedures, and all of the other benefits attendant to a well-managed arbitration process. Such an agreement is short and direct, and can provide that the litigation is stayed until such time as a final award is rendered. Courts are more than receptive to approving these agreements and referring matters out to arbitration.
- Taking advantage of technology options. Whether we are in court or arbitrating, cost should not be an impediment to getting cases decided or a deterrent to raising meritorious claims. In a very healthy way, the last two years have pushed litigators and ADR practioners forward, along with their business clients, into adopting remote-meeting and participation technology. And technology facilitates getting our cases mediated, too. Apart from the evident benefit of being able to more easily assemble parties from different locations, through online dispute resolution, technology deployment helps on the front-end by making it more likely that a mediation can be successful. Already ongoing was the use of file-sharing, electronic-information management, and increasingly, AI to facilitate case analysis. How can we keep ourselves educated about and employing these and other innovations even more in 2022?
- Challenging conventional ADR thinking: If there is a thread woven through these suggestions, it is that the received wisdom about ADR does not always serve us. Great examples are the old chestnuts that suggesting mediation first is a sign of weakness; that arbitrators tend to “split the baby;” or that mediation before discovery won’t be productive. The data doesn’t support any of these assumptions, nor have I found them in my own experience to be true. Take a fresh look in every case at the mode of dispute resolution that best fits, and give yourself free rein to think creatively about how the parties can structure creative solutions. Challenge the conventional wisdom and assumptions we’ve all inherited, and discard any that don’t seem supported or serve the cause of good client service.
So there they are: some of the ways I hope we might move successful case resolution forward in 2022. By the way, if this discussion of year-end seems premature because, like my friend, you have not yet removed your holiday decorations, I’ll share a loophole: we’re technically still within the “twelve days of Christmas,” which run through January 5! So pack up the snow globes, put your tree on the curb, and if you do end up adopting one or more of these suggestions, e-mail me and let me know. Happy New Year!