This article describes how neutrals can provide early case management and resolution services to help parties in construction disputes resolve them more efficiently. Lawyers are often trapped in a “prison of fear” which locks them into unnecessarily long and expensive litigation. Although lawyers sometimes initiate early negotiation without engaging a third party to manage the process, sometimes a neutral may be necessary or extremely helpful. This article describes how neutrals can help lawyers and parties build an “escape hatch” from the prison of fear.
In contrast to the movement to “unbundle” lawyers’ services by offering clients the option to retain lawyers to perform selected services “à la carte,” this article recommends that neutrals offer to “bundle” a broad range of case management services. In addition to services related to the ultimate resolution of a case, neutrals can orchestrate good working relationships between counsel, exchange of information and documents specifically needed for the process, attendance of particular individuals, participation of experts, preparation of the parties, scheduling and logistics of the process, and documenting procedural agreements, as appropriate. Neutrals may be able to provide these services more economically than the parties’ lawyers, provide assurance that no one will gain unfair advantage from the procedural arrangements, and permit a fair allocation between the parties of the case management costs. The ideas in this article are adapted from my book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money (ABA 2011).
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.