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.