Benefiting from Planned Early Dispute Resolution

1. Benefiting fromPlanned Early Dispute Resolution [Name of Organization] [Date]

2. What You Will Learn • What is planned early dispute resolution (PEDR) • How lawyers can get good results for clients using PEDR (and still earn a good living) • What resources are available about PEDR

3. What is PEDR? • General and flexible approach to dispute resolution • Goal is to reach agreement satisfying the important interests of all parties • Alternative to litigation-as-usual (i.e., late negotiation, after expensive discovery, on the eve of trial)

4. Potential Benefits • Provide project management system • Satisfy clients’ interests • Save client time and money • Reduce litigation risks • Increase lawyers’ effective billing rate • Generate client good will and repeat business

5. Two-Step Process • Lawyers (with client input) jointly figure out what is needed to negotiate at earliest reasonable time • Make it happen

6. Actually More Steps • Develop productive relationships with client and counterpart • Do early case assessment • Determine if negotiation is appropriate • Discuss procedural plans with counterpart, including exchange of information • Consider using experts, mediators, or other neutrals • Schedule meeting, set agenda, and prepare clients • Use interest-based negotiation as appropriate

7. Early Case Assessment PEDR starts with early case assessment (ECA): • Identify business interests and concerns • Analyze other side’s perspective • Obtain critical information • Analyze legal and other risks • Evaluate case and develop settlement strategy • Be prepared to litigate, if necessary

8. UsingThird-Party Neutrals As appropriate, use mediators or evaluators to: • Reduce adversarial tension • Reassure parties about fairness • Manage procedural issues • Reduce and share case management costs • Overcome barriers to agreement

9. Isn’t This Just What Good Lawyers Do? • Sometimes, yes • Too often, no

10. Why Don’t Lawyers Use PEDR More Often? They are trapped in a prison of fear: • Fearthat other side won’t cooperate • Fear of appearing weak • Fearthat other side will take advantage • Fearthat client will lose confidence • Fearof lost income

11. Keys to the Prison of Fear • Do ECA and proceed only if expected benefits outweigh risks • Educate client and get consent • Use fee arrangement rewarding satisfactory early settlement • Tell other side you routinely consider PEDR • Negotiate only if other side will cooperate • Use mechanisms to check accuracy of information • Use interest based negotiations • Be prepared to “walk” if necessary

12. Challenges To Getting Client Buy-in Clients may worry that: • Their lawyer will not be a strong advocate • They will get a bad deal • PEDR will increase time and cost

13. Lawyers’ Solutions • Identify client’s specific concerns • Establish clear objectives/milestones • Give examples of successful negotiations • Assure client of willingness to: • Negotiate seriously, if appropriate • Reach reasonable settlement, if possible • Litigate vigorously, if necessary

14. Perceptions About Legal Fees In general: • Clients want to pay as little as possible • Lawyers want to receive as much as possible • Clients worry that lawyers are taking advantage

15. Possible Solutions Give clients choice of fee systems advancing interests of clients and lawyers, such as: • Premium for early settlement, declining over time • Value billing -- set range of fees at outset; after matter ends, client chooses point within range

16. 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

17. Challenges WithCounterpart Counsel • Adversarial relationship causing risk of disadvantage • Hard to simultaneously: • Explore settlement and • Vigorously protect clients’ interests

18. Possible Solutions • Develop personal relationship with counterpart, e.g., have lunch early in case • Offer other side “the easy way or the hard way” • Express preference for easy way • Be willing to use hard way if needed

19. 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?

20. For More Information Read “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)