A No-Brainer?

by John Lande
March 2016

From the Indisputably blog

John Lande

One might assume that using a “planned early dispute resolution” (PEDR) system should be a “no-brainer” for businesses that regularly litigate because litigation-as-usual undermines many business interests such as efficiency, protection of reputations and relationships, control of disputing and business operations generally, and risk management, among others.

Although this seems like a plausible assumption, the study I did with Peter Benner indicates that is it problematic because there are multiple reasons why many businesses do not change their usual approach.

Just as there are understandable reasons why lawyers often don’t negotiate or use other DR processes (which I refer to collectively as a “prison of fear”), businesses have understandable reasons why they often don’t systematically use DR methods.  While these reasons may not make sense to outsiders, especially DR experts, they make perfect sense to many business lawyers and executives.

Even so, some innovative inside counsel have led the way to overcome barriers and help develop PEDR systems for their companies.

How did they do so?, you might ask.  We sketched this out in a post with the preliminary findings of our study.

But you will undoubtedly want to read the entire article, Why and How Businesses Use Planned Early Dispute Resolution, including recommendations to help businesses overcome foreseeable barriers and develop good PEDR systems.

Some very knowledgeable people who read an earlier draft (including some who are not acknowledged in the first footnote) said that our analysis really captured the reality of the situation, so this is worth a look if you are interested in these issues.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.

 

 

 



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