Benefiting from Planned Early

Dispute Resolution[Name of Organization]

[Date]

What You Will LearnWhat 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

What is PEDR?General and flexible approach to dispute

resolutionGoal is to reach agreement satisfying the

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 clients’ interests Save client time and moneyReduce litigation risksIncrease lawyers’ effective billing rateGenerate client good will and repeat business

Two-Step ProcessLawyers (with client input) jointly figure out

what is needed to negotiate at earliest reasonable time

Make it happen

Actually More StepsDevelop productive relationships with client and

counterpartDo early case assessmentDetermine if negotiation is appropriateDiscuss procedural plans with counterpart, including

exchange of informationConsider using experts, mediators, or other neutralsSchedule meeting, set agenda, and prepare clients Use interest-based negotiation as appropriate

Early Case AssessmentPEDR starts with early case assessment (ECA):Identify business interests and concernsAnalyze other side’s perspectiveObtain critical informationAnalyze 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 parties 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 risksEducate client and get consentUse 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

Challenges To Getting Client Buy-in

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

Lawyers’ SolutionsIdentify client’s specific concernsEstablish clear objectives/milestones Give examples of successful negotiationsAssure client of willingness 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 SolutionsGive clients choice of 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

Challenges WithCounterpart Counsel

Adversarial relationship causing risk of disadvantage

Hard to simultaneously:Explore settlement

andVigorously protect clients’ interests

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

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 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)