We all think we know what alternative dispute resolution (ADR) is. But what is it really? As with so many things, the answer is: “It depends.” Variations in ADR processes can arise from a number of factors, including practice area, practitioner and the particulars of the dispute. However, all ADR processes share the characteristic that the outcome is not determined by a court.
Court resolution through civil litigation can be an expensive choice, sometimes extremely so. Lawyers recognize that. Respondents to the WSBA’s 2009 survey of active members “agreed” (39%) or “strongly agreed” (36%) that the cost of litigation had become prohibitive.1 In an effort to address that problem, the WSBA chartered its Task Force on the Escalating Costs of Civil Litigation.2 The Task Force was instructed to assess the current cost of civil litigation in Washington, make recommendations on controlling those costs, and — in determining its recommendations — survey neighboring and similarly situated states.
Four years after meetings began, the Task Force published its final report to the Board of Governors (BOG).3 Commencing in January, the BOG meetings have included presentation of the recommendations from the Task Force and allowed comment on those recommendations. Forthcoming action from the BOG includes the first reading of its response and determination of the final action, such as what to send on to the Supreme Court.
The Task Force made a number of recommendations on changes to ADR practices that could reduce litigation costs. Although we do not yet know what will follow from the BOG’s consideration of these recommendations, counsel and neutrals alike can choose to consider incorporating these practices. Doing so may better assist clients and help improve the operation of the justice system in Washington.
Early Mediation. The findings of the Task Force are that, currently, mediation or settlement conferences take place very close in time to trial, when the majority of litigation costs have been incurred.4 The Task Force has recommended a court rule change such that mediation would be required no later than 60 days after completing party depositions or at least 60 days before the start of trial, whichever is sooner.5
Additionally, the Task Force suggests that parties consider very early mediation if that is appropriate for their dispute or case type.6 Mediating earlier in the case offers the potential to save money as well as stress and disruption by “shortening the time between the emergence of a problem and finding a solution.”7
As practitioners, we can consider whether an early proposal of mediation is likely to be effective. As neutrals, we can encourage counsel to shorten the time between the start of a case and evaluating its readiness for mediation.
Limited-Scope Mediation. Mediation is a flexible tool. It affords parties the ability to focus on specific issues. Mediation can move a case forward either by resolving smaller issues that do not require trial or by assisting parties in navigating complex and potentially contentious discovery.
Varying Mediation Format. Often, when mediation is scheduled on the eve of trial, it necessarily becomes a one-day, high-stakes event. The Task Force recommends that parties and mediators should consider varying this format; conducting mediation as a series of sessions if appropriate. The benefits of such an approach can include “[increasing] the effectiveness of mediation by allowing more time for both sides to consider the issues.”8
Choosing mediation earlier in a case enables parties and counsel to “test drive” interim agreements and gather additional information on new matters (rather than being forced to make assumptions that may lead to problems when implementing the agreement).
Pre-Session Meeting or Consultation. Whether with counsel, or with counsel and parties, pre-session consultation can speed resolution and reduce costs. Pre-session contact “helps familiarize the mediator with the facts and disputes, focus the attorneys on key issues, and lower the barriers to resolution.”9 Pre-session contact can optimize attorney involvement, facilitate more efficient resolution and decrease client costs.
Private Arbitration Recommendations
Identify/Define Scope of Arbitration. Because private arbitration is governed by contract, an arbitrator has the ability to identify what should fall within the scope of arbitration. As counsel, we can — and should — determine whether the scope of arbitration is appropriate to the case.
As neutrals, skillful practice includes evaluating and defining parties’ expectations of the scope of issues to be resolved. If narrowing the scope is appropriate, Task Force recommendations include selecting a single arbitrator rather than a panel, focusing arbitration on a single issue or establishing specific limits on the relief an arbitrator can grant.10
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