Forecast 2014: New Arbitration Rules Could Be Game-Changers

, The Connecticut Law Tribune

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Peter Benner

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 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. 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 Intervention. The American Bar Association has commissioned a blue-ribbon Planned Early Dispute Resolution (PEDR) Task Force. The group recently published a "User Guide for Planned Early Dispute Resolution" that can be found on the ABA website, americanbar.org. The guide is a "how-to" resource for devising and implementing strategies, particularly for businesses, to significantly reduce cost and develop routes around "litigation as usual."

The preface summarizes the rationale for pursuing resolution earlier in a case: "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 serve their clients more effectively, 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, 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.

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