Page 8 - November December CBA Report

Feature
ADR Preparation Measures
As alternative dispute resolution (ADR) methods become more popular and complex1 following the Covid-19
pandemic,
ments in pre-dispute measures to facilitate ADR. These measures make ADR a less costly and more expeditious alternative to litigation.
Trends in Modern ADR
Adversarial litigation, generally understood to be costly and undesirable, is only becoming viewed as more onerous and disruptive.3 At the same time, however, proactive pre-litigation use of ADR has declined.4 This is in part because, as demand for ADR increases, more lawyers untrained in ADR are participating, deploying familiar adversarial techniques.5 Additionally, inertia and emotions make it difficult for parties to constructively nego- tiate to a resolution.
This dilutes the usefulness of ADR as an early intervention tool to resolve disputes with a participant-centered, interest-based approach. One primary goal of ADR is not only to get a deal, but also to resolve the underlying dispute itself, prevent escala- tion of conflict, and preserve relationships.6 To accomplish these lofty goals and prevent the further dilution of participants’ direct control over ADR, parties need to implement early pre-dispute measures.
Legal observers are beginning to recognize this trend.7 Already, in cases involving complex commercial disputes, multiple parties, or strong emotional overtones, parties recognize that early mediation measures facilitate quicker and less expensive negotiated resolutions.8 This recognition need not remain narrow. As a mediator, I often hear parties express how contact with the
8 l November/December 2021 CBA REPORT
By Michael Hawkins
mediator is the first time they have had meaningful discussions to resolve the dispute. This demonstrates the need for pre-dispute efforts. The benefits of pre-ADR contact include:
• Saving time and costs;
• Less entrenchment and more mobility in crafting creative resolutions;
• Easily expressing underlying needs and interests;
• Less sunk cost bias;
• Fewer surprises;
• Confidentiality that shields parties from reputational risks associated with a public dispute;9
What Pre-Dispute ADR Measures CanClientsTake?
Most importantly, clients should include pre-dispute medi- ation and arbitration clauses in contracts. A written agreement provides security in the event that ADR becomes necessary. Without such a written agreement, resolving the dispute inside or outside the courtroom will almost certainly be more challenging and will involve a lot of he-said-she-said arguments.10 Standard components of these clauses often provide:
• A statement of intent;
• The scope of the agreement;
• The applicable forum and law (CBA ADR, AAA, JAMS, private selection);
2
it is important that parties make early invest-
• Appointment of mediators and arbitrators; • Other procedural rules.11
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