As you may have seen
posted
here at the Dispute Resolver late last week, our Division Lunch in Chicago will
be discussing Guided Choice. Speaker
Paul
M. Lurie from Schiff Hardin LLP in Chicago and I will be discussing this
approach to mediation that has attracted major users of litigation services,
AGC and AAA. This post is intended to give a brief introduction to the concepts
underpinning Guided Choice dispute resolution, and it will also raise some
questions to consider for the presentation.
The information below has been distilled from articles and
additional resources located at the Guided Choice Dispute Resolution blog,
located at this link.
The Context: The Current Lay of the Land
As most of us know, construction trials in any forum –
whether in an arbitration, in a bench trial, or before a jury – are becoming
rarer and rarer. More than 10 years ago, the American Bar Association Section
of Litigation featured a story by the then-chair of the Section Patricia Lee
Refo discussing what she called “
The
Vanishing Trial.” As the statistics from Professor Marc Galanter cited in
the article mentioned, nearly every type of civil case has seen a marked
decline in the number of cases that go to trial.
What happened to these cases? There are a few possibilities.
First, with the changes in law related to being successful at the
summary-judgment stage, perhaps there are more factually lacking cases that are
filtered out before they reach a trial. Second, judges and court systems
encourage – some would say pressure – parties to explore settlement options and
mediation more frequently and earlier in the process. Third, the
ever-increasing costs for trying cases has pushed parties to settle cases.
Finally, there often is a business reason to settle a case before trial – risks
of outcome, business distraction and use
of resources, relationship preservation and business ethics.
As construction litigators, we encounter pressures from our
clients to settle cases to avoid the potential downside at trial. Yet, even
when we file a lawsuit in which two parties appear to hate each other more than
any two business entities should, we end up settling the case anyway. At that
point, we hear complaints from our clients and the other side about how much
money they spent getting to what was always the most likely resolution.
This is where Guided Choice comes into the discussion.
What Is Guided Choice?
Since a settlement is almost always the most likely
scenario,
Guided Choice
encourages a faster, earlier resolution of a dispute that also reduces expense
Because it is based on standard mediation clauses the Guided Choice procedures for resolution are incorporated
into most construction contracts without
additional language.
The main purpose of Guided Choice is to have a more active,
involved mediator who is working to confidentially diagnose the basis for the
dispute and suggest an effective settlement process before any negotiations
begin. Parties should not be required to negotiate until they believe they are
ready. Guided Choice helps get them ready. The mediator is brought into the process very
early in the dispute, and he or she is engaged to review the existing problems
and identify ways to resolve the case before discovery rumbles onward for
years.
For example, the mediator begins talking in confidence to
the parties and the attorneys early in the process. This helps the mediator to
identify potential areas for impasse before
the parties have spent thousands of dollars on mediation statements, experts,
depositions, document exchanges, and the like. By identifying these problems
early, the mediator can help the parties to engage in limited information exchanges. The amount of information that
enables parties to make the business decision to settle is less than the amount
needed for a lawyer to prepare for trial. Guided Choice helps the parties
recognize the distinction.
Even if an impasse occurs, the mediator may be involved to
assist the parties to craft a limited or modified process for the parties focusing on the
impasse issues where positions need to re-evaluated. This may involve the use of
experts, Dispute Review Boards and binding or non-binding opinions from
arbitrators or judges.. This assistance allows the parties – again,
confidentially through the mediator – to design a dispute-resolution process
that is appropriate for the size, importance, and complexity of the dispute.
What Are the Questions About this Approach?
As we will discuss in Chicago, this approach raises a number
of questions in the minds of litigators. Since much of our presentation in
Chicago will focus on these questions, I am only going to raise them here for
folks to consider before the presentation.
1. It sounds like the mediator being
involved more in the process is just another layer of expense for our clients. Why
would we pay a mediator in this way in addition to all of the other
costs in litigating a case?
2. With the mediator being so involved in
the process and the process including deeper investigation than most
mediations, it sounds like Guided Choice will delay the process
of getting a case to arbitration/trial. Is this true?
3. Look,
all this touchy-feely stuff sounds great, but I know that the other side in
this dispute is entirely irrational and unreasonable. Why would I waste my time
and the client’s money engaging in a mediation that we know won’t work?
4. My
clients understand mediation is important. That is why we have written step-negotiation
clauses into their contracts. Isn't that enough? Shouldn't those
executives meet to work things out before we get a mediator involved?
5. This
does
not sound like anything new to me. Isn't this the same process we have
already in mediation?
6. Why
would I keep a mediator involved after an impasse is reached? That sounds like
a waste of time and money and it sounds like it could cause me to have to
disclosure trial strategies.
7. Hold on a second – this sounds
interesting and all, but it feels like that my clients and I are ceding
control over the negotiations to the mediator. Why should I do that?
8. Okay, you have me convinced that this
is a great idea and will save my clients money, time, and effort. But, hey, I am
a businessman too and this sounds like you are taking money out of my
pocket. I mean, I want the best for my clients and all, but isn’t this
set up going to cost my law firm and me money?
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