The Place for Early Dispute Resolution

The Star, 28 January 2004

By John Brand, Bowman Gilfillan

Increasingly clients are asking whether law firms address their business needs for speed, efficiency, risk-reduction and cost containment. In particular, they doubt whether the litigation service offered by the traditional law firm delivers the kind of outcomes which today’s business requires.

They ask whether it is really worth the enormous amount paid to lawyers and the time invested in protracted litigation by executives and whether these resources could be better spent in more valuable and creative ways. They look for more emphasis to be placed on looking ahead rather than defending past mistakes and they want to avoid alienating customers and suppliers.

“As importantly” says John Brand an early dispute resolution (EDR) specialist at Bowman Gilfillan, “They ask if the average judge has the scope of business knowledge and experience to deliver sound outcomes to modern commercial disputes? Is the win-lose paradigm in which litigation operates suitable for conflict which could best be resolved by outcomes of mutual gain? And, why should clients continue to feel alienated and mystified by the workings of the law and not have more rather than less control over the way disputes are resolved?”

These concerns are giving rise to changing assumptions. “To seek settlement is no longer necessarily seen as a sign of weakness. Nor is it assumed that negotiations should be delayed until a case is fully prepared, or the identity of the judge is known or evidence has been tested. Instead, it is increasingly expected that the very risk and uncertainties of incomplete preparation and unsure outcome should be exploited to achieve sensible business outcomes at limited expense. There is an increasingly recognition that, in many cases, a more subtle and nuanced approach to dispute resolution is needed. The value of an early settlement is now often seen as the ultimate victory for all.”

“In the short term, lawyers may lose billable time and fees but, more and more, they are expected not to let this conflict with their duty to achieve early and effective outcomes for clients. Astute lawyers know that it is in their long-term interests to adjust their practices and to adapt their billing methods to reduce this potential conflict of interest”.

The approach is to EDR is characterized by a fundamental change of mindset by law firms in which they no longer see themselves as selling a service to client but rather as selling effective business outcomes.

Instead of consensus seeking being a last resort, it becomes the first priority.