ALTERNATIVE DISPUTE RESOLUTION
A Path to Quicker, Better Dispute Resolution
By DOUGLAS I. MCQUISTON
This article discusses "early intervention mediation" as a tool to be used throughout the life of a case to facilitate information exchange, build trust, and advance parties toward settlement.
“You have to work up every case like it will go to trial." As trial lawyers, we have heard and given this advice since law school. It is good advice; our professional duty to our clients requires us to fully prepare their cases, and that includes being fully prepared for trial.
But we also need to remember why our clients came to us in the first place: they had a problem they couldn't solve on their own, so they hired us to help them. That is why they pay us. But in addition to wanting us to be competent in trial, our clients have equally compelling needs for our work to be
■ proportional to the issues and dollars at stake, and
Clients, and increasingly courts, are looking for results that are better, faster, and cheaper. The recently announced 2018 changes to CRCP16.11 illustrate the judiciary's ongoing desire to squeeze cost and delay out of the civil justice system. The goal today is to get to the point without breaking the bank.
Leave Out the Parts People Skip
Renowned novelist Elmore Leonard was once asked how he managed to write such concise detective novels. He reportedly said, "I try to leave out the parts readers skip."2 This is not so simple in civil trial law. The gulf between what we want in discovery and what matters at trial is wide. We live with the fear that if we miss anything, it will damage our client's case, or worse, open us up to a malpractice claim.
Our compulsion to run every fact to the ground, in every case, is a hard beast to tame. But tame it we must, if we are to deliver on the cost-efficiency promise our clients and courts demand of us. Discovery is useful but expensive, and if overused, it can become an obstacle to the effective resolution of a dispute.
The Traditional Way:
"Mountaintop Removal" Discovery
Too often, discovery resembles a form of strip-mining called "mountaintop removal."3 We've all encountered it, and maybe we've even done it. Practitioners don't just investigate a dispute—they blow it up. Then they sift through the rubble, inspecting every rock and pebble. They follow every seam of information, however off-topic, and push every claim or defense they can think of, as hard and as long as they can. They engage every expert witness their highly trained legal minds can contemplate, daring their opponents to depose them all. They take pride in every discovery battle as evidence of their zealous representation and "tough" approach to litigation. Some even insist that anything less is malpractice.
That discovery style may have once paid off. But times have changed, and adversaries have adjusted. Today, even firms and clients of relatively modest means can take advantage of highly efficient, inexpensive artificial-intelligence supported trial and discovery management tools, e-discovery software, and other litigation support tech tools. Now that both sides have access to these tools, "mountaintop removal" discovery has lost its luster and more resembles mutually assured destruction.
All that strip-mining we may have done in the past came at a huge cost, but most often yielded very little in admissible, persuasive evidence. In 2010, a group of civil justice interest groups conducted a detailed survey of Fortune 200 corporations. Among the questions was a series designed to tease out the actual ratio of documents marked as exhibits for trial to die volume of documents produced in discovery.4 The results were stunning: The study showed that 4,980,441 documents were produced in discovery in major cases surveyed that went to trial (with "major" defined as cases that generated $250,000 or more in litigation costs). Of those, just 4,772 were ever marked as exhibits. That works out to about a .09% yield of useful evidence to useless overburden. Consider how much die clients in these battles spent for that meager return.
Instead, Get to the Point
To reach the goal in today's litigated case, we first need to accept a simple truth: we don't need every shred of information pertaining to a dispute to fairly resolve it. It may be uncomfortable to ponder, but sound decisions can still be made, and good outcomes achieved, if we let go of gathering everything and embrace getting just enough.
All of us in the business of civil trial work use mediation. However, in the United States we typically use it only at or near the end of discovery. We've always done it this way. We run tiirough our checklist in our client intake meeting, open the new case, file a complaint or answer, and then leap right into the disclosure and discovery stream.
But that stream is rarely a smooth float; logjams are frequent and frustrating. Mired in discovery skirmishes, it becomes easy to lose sight of why we were hired in the first place: to help our clients solve their problems. Mediation becomes almost an afterthought as we scramble to finish discovery. If we manage to agree on a mediation date at all, it comes maybe weeks before trial, after all the money is spent and positions have hardened to stone. Negotiations are often then hampered by a lack of time to adequately prepare.
Only time will tell whether the recent Colorado civil rule changes favoring "simplified" procedure and restricting formal discovery will help. But we need not wait; we can take a different approach now. In fact, the approach discussed below is well suited to not only large, complex disputes, but also to cases coveredbyrecendyrevisedCRCP16.rs "limited discovery."
Early Intervention Mediation
Let's change our entire view of what mediation can accomplish and use it throughout the life of a case to
■ keep information flowing informally;
■ keep the parties moving toward agreed milestones;
■ build trust; and
■ get the parties to the table months earlier, with just enough information to fairly resolve problems.
This process is called early intervention mediation (EIM).
Several mediation firms in the United Kingdom use EIM in litigated financial and business disputes. It is being used here too, but infrequently and mostly for non-litigation mediation programs in places such as school districts and mental health and community associations. The time has come to widen its application to litigated civil matters.
The idea is simple: engage the mediator early, and use her or him throughout the life of the case to keep the parties moving toward a quicker resolution. In this model, the mediator guides the parties through an efficient discovery and information disclosure plan (whether formal or informal) designed to get just enough information at the earliest possible right time. The mediator
■ intervenes quickly and efficiently whenever needed to break discovery logjams;
■ helps parties whittle disputes down to what really matters; and
■ works with the parties to resolve the case through a substantive mediation phase well before any scheduled trial or arbitration, sometimes just a few months into the case.
Put another way, the early intervention mediator helps parties "leave out the parts people skip."
How EIM Works
EIM can work for many types of litigated disputes, from personal injury and professional negligence claims to construction, product liability, and class actions. In commercial disputes, the parties can avoid the exposure of proprietary or embarrassing information in public court records. They can preserve business relationships between the disputants and avoid escalation of the dispute that could drag in other customers, suppliers, or competitors in the broader marketplace. EIM is especially useful in complex, multi-party, or highly contentious cases, regardless of the amount at stake. It works even where the litigants or their lawyers do not trust each other. In fact, it is in those cases that the technique can yield the biggest returns.
Done right, EIM builds trust through little mutual victories along the way. As the plan is worked, the parties see the benefits of sticking with it. Rather than squaring up and fighting when they hit a logjam, they can quickly and discreetly call the mediator to help them untangle it. At any step of the process, the mediator can also offer his or her evaluative and litigation expertise to keep the parties and lawyers focused...