Is there such a thing as "smart" dispute resolution? You betcha there is! And here is why.
What is the goal in representing a client in a dispute: resolution of course, but the path towards the agreed upon end result is the issue. How do we - or did we - get there, and when we did was the end result acceptable? Was value received in the sense that the cost of proceeding down the path and the ultimate result done efficiently and effectively?
The key to "smart" dispute resolution, in my view, is proper litigation management. I define it as: The effective planning, organization, delegation and supervision of litigated matters so as to gain the advantage crucial to achieving an acceptable and timely resolution of the dispute.
That is, make a plan. As a sometimes expert witness in various aspects of civil litigation and insurance claims handling, I see cases run amuck with no real planning or oversight. It is reaction not action that takes place. There is no goal setting, no timeline, not thought given to how to obtain the critical information about the facts in the case. And often the law is not carefully researched to applied to the facts at hand.
So what constitutes "smart" dispute resolution? Good question, so now let's address the answer.
First, make that plan. Go over the case and get the facts down and analyze what you know based on the legal rules. Force yourself to put everything available together in an outline and get a sense of what the case is about, what problems or issues present themselves, and what the client's needs are in representation in the dispute resolution process. Then communicate this to the client so the client is aware of the merits of the case and what needs to be done to get resolution.
Second, evaluate what needs to be done in the discovery process to get you to a point of being able to sense the end result if the case is tried. Here, my colleague, Michael Carborne, a San Francisco Mediator, comes to my rescue. He calls this "good discovery" or "that which is used for the intended purpose and that leads to a fair settlement. "Bad discover is that which is used with the ulterior motive of wearing the other side down, hopefully forcing them to spend huge amounts of money or to capitulate to the settlement that the bad discover wants." ("Resolving It, Vol. 3, Issue No. 10, October 2012.)
I have described the process of well timed discovery as progressing to a "plateau" at which point enough has been done to be able to a) evaluate the case, b) see what needs to be done, c) look at the costs of further proceeding, and d) evaluate the possible outcomes, so that a cost/benefit and risk/reward analysis can be done.
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