Benefiting from Planned Early

Dispute Resolution[Name of Organization]

[Date]

What You Will LearnWhat is planned early dispute resolution (PEDR)How you can get good results in your disputesWhat resources are available about PEDR

What is PEDR?General and flexible approach to dispute

resolutionGoal is to reach agreement satisfying most

important interests of all partiesAlternative to litigation-as-usual (i.e., late

negotiation, after expensive discovery, on the eve of trial)

Potential BenefitsProvide project management systemSatisfy your important interests Save time and moneyReduce litigation risksImprove communication with your lawyer

Two-Step ProcessBoth sides jointly figure out what is needed to

negotiate at the earliest reasonable time

Make it happen

Actually More StepsLawyers work well with client and counterpartDo early case assessmentDetermine if negotiation is appropriateDiscuss procedural plans with other side, including

exchange of information and timingConsider using experts, mediators, or other neutralsSchedule meeting, establish objectives, set agenda,

and prepare to negotiateUse interest-based negotiation as appropriate

Early Case AssessmentPEDR starts with early case assessment (ECA):Identify business interests and concernsObtain critical informationAnalyze other side’s perspectiveAnalyze legal and other risksEvaluate case and develop settlement

strategyBe prepared to litigate, if necessary

UsingThird-Party Neutrals

As appropriate, use mediators or evaluators to:Reduce adversarial tensionReassure both sides about fairnessManage procedural issuesReduce and share case management costsOvercome barriers to agreement

Isn’t This Just What Good Lawyers Do?

Sometimes, yes

Too often, no

Why Don’t Lawyers Use PEDR More Often?

They are trapped in a prison of fear:Fear that other side won’t cooperateFear of appearing weak Fear that other side will take advantageFear that client will lose confidenceFear of lost income

Keys to the Prison of Fear

Do ECA and proceed only if expected benefits outweigh risksMake sure lawyer and client are on same “wavelength”Use fee arrangement rewarding satisfactory early settlementTell other side you routinely consider PEDRNegotiate only if other side will cooperateUse mechanisms to check accuracy of informationUse interest based negotiationsBe prepared to “walk” if necessary

Client Worries

Clients may worry that:Their lawyer will not be a strong advocateThey will get a bad dealPEDR will increase time and cost

Possible SolutionsMake sure lawyer is willing to:

Negotiate seriously, if appropriateReach reasonable settlement, if possibleLitigate vigorously, if necessary

Perceptions About Legal Fees

In general:Clients want to pay as little as possibleLawyers want to receive as much as possibleClients worry that lawyers are taking advantage

Possible SolutionsConsider alternative fee systems advancing interests of clients and lawyers, such as:Premium for early settlement, declining over

timeValue billing -- set range of fees at outset;

after matter ends, client chooses point within range

Value Of Alternative Fee Arrangements

“We are buying less of what the law firms continue to sell—e.g., billable hours—but we’re simultaneously paying higher effective hourly rates. It is value on both sides of the equation.”

Mark Wolf, Ass’t General Counsel, FMC Technologies

This Sounds Good But … ? ? ?

These ideas may sound good in theory but some people may think they won’t work in their cases.• What might be barriers in your cases?• How could you overcome these barriers?

For More InformationRead “PEDR User Guide”ABA Section of Dispute Resolution

www.americanbar.org/groups/dispute_resolution.html

co-sponsored by American Arbitration Association (AAA)

Int’l Institute for Conflict Prevention and Resolution (CPR)Judicial Arbitration and Mediation Service (JAMS)