By Erin Gleason Alvarez

The problem with disputes is that they never go away.  Yes, they are resolved one by one – maybe even a group of them are settled at once.  But there are always more lurking: another claim, waiting to be filed; another complaint, making its way to your desk.  It’s a cycle and everyone knows that.

Many things in this dispute world are out of your control – or at least it feels that way.  Litigation costs money – sometimes lots of it.  It takes time – sometimes lots of that too.  Both of these things are hot commodities and less than ideal expenditures from a business perspective.  Thus, the pressure on the in-house attorney to manage risk, manage cost, settle, settle at the right cost at the right time… it’s always there.

If we know that there will most likely always be a disputes cycle, forever costing money and taking precious time, what is the best way to manage this and prevent logjams? There is an answer.

Dispute System Design

Perhaps it makes sense to take a cue from the business side of the house and view this dispute cycle as another business process to be mapped and managed.  At CPR, we’ve heard many stories affirming this strategy as a successful one, including my own experience in-house.

Nonetheless, year after year, in survey after survey – when in-house counsel voice their concerns over cost and efficiency – there is rarely a mention of dispute resolution systems.  For example, in the 2017 Litigation Trends Annual Survey produced by Norton Rose Fulbright, only 9% of corporate counsel reported that internal processes or controls for reducing the volume of litigation was an effective strategy; only 2% favor a regular risk mapping process.  Instead, a majority of corporate counsel responding to the survey rely on regular training programs for lawyers and early case assessment as effective ways to manage litigation.

What if you combine training + early case assessment + risk mapping + protocols?  Picture it: A coordinated system to resolve disputes, designed specifically to address the in-house concerns about spending too much money on litigation and wasting time that might be better spent elsewhere.

This is where “dispute system design” comes in.  Dispute system design is the process for identifying the trends and pain points in your dispute resolution/litigation practice, and then implementing process improvements along with measurements of your success.

How It Works

Here is a brief overview of what a dispute system design strategy entails:

1. Conduct an assessment:  What’s vexing, trending, anticipated in your disputes portfolio?  This may be identified through surveys, interviews and data analysis.
2. Process improvement:  What solutions can you identify to address these issues?  How is mediation being used – can it be done earlier?  What negotiation techniques are most relied upon?  How is arbitration handled?  Some cases must inevitably be routed to litigation – what is the best way for identifying them early?
3. Implementation: How will you implement the strategies you have identified as most sensible for your work?  Training?  Metrics?  Employee evaluation? Changes to law firm relationships? Processes for identifying better mediators and arbitrators?
4. Measure success: What criteria will you require to determine the level of success achieved?  Are you mainly concerned about saving litigation cost?  Cost associated with employee time? Case volume?  Settlement rate?  Or are there qualitative goals that should be considered as well, including employee job satisfaction and opening more opportunities for career growth?

Areas of Application

Just as systemic approaches to governance, compliance and contract management are well settled  corporate strategies, dispute system design and management is a practical way to manage exposure.  Bespoke litigation strategy will always have some role in the cycle.  But let’s face it:  Are most of your cases unique and deserving of their own individualized strategies and budgets?   Are the facts so  different that the analysis must be carefully tailored, time and again?  Sometimes.  Most of the time – probably not.

A dispute system design approach may be implemented to address your litigation portfolio, formalizing early case assessment measures, monitoring and reporting on their efficacy and helping to trigger other dispute resolution mechanisms where needed (e.g., direct negotiation processes, mediation, streamlined arbitration, etc.).

Dispute system design work may be applied in other contexts as well.  For example, many reports cite in-house concerns over the rise in cybersecurity disputes over the next year.  Analyzing your current cyber disputes portfolio, in order to develop methods for triage and settlement approach is one way to insert some predictability into an area that is causing a fair amount of anxiety in-house.  The same can be said for other areas of growing concern to in-house counsel: rising environmental concerns, the ever-present threat of mass disasters, and continued changes in health care – all of which are stressors on litigation budgets.  It is proactive to address these risks in a systematic way to enhance predictability, efficiency and cost controls.

Do You Need It?

In determining whether dispute system design is right for your organization, consider these factors:

1. Are you currently satisfied with the length and cost involved in managing disputes?
2. Have you identified any issues relating to dispute outcomes (in terms of quality, time to resolution, or expense required)?
3. Are there any obvious issues that you can address to make your processes more efficient?
4. Do you have the bandwidth or expertise to conduct this type of review for your company?
5. What is the ROI in retaining someone to conduct the review for you?
6. Would reporting on dispute resolution savings, or other efficiencies, be of value to the organization?

Conclusion

Dispute system design is an important function for in-house counsel to utilize in managing disputes in a systematic way.  A coordinated approach lends to predictability in dispositions, cost savings and many other efficiencies.

 

Erin Gleason Alvarez launched Gleason Alvarez ADR in 2017.  She formerly served as the Global Head of ADR Programs at AIG, where she designed dispute resolution systems and served as an advisor to state agencies in the development of mass disaster protocols following Hurricanes Irene, Ike, Sandy and mass claims resulting from wildfires fires in California. 

Erin now serves as a mediator and arbitrator in commercial and insurance disputes.  She also serves as a consultant to corporations and law firms in designing dispute resolution systems.