The October 2014 issue of Dispute Resolution International (the journal of the Dispute Resolution Section of the IBA) features an excellent article by Chicago mediator/arbitrator/attorney Paul Lurie and Swiss/Israeli mediator/attorney Jeremy Lack on “Guided Choice Dispute Resolution Processes: Reducing the Time and Expense to Settlement.” As the title suggests, the logic of the piece stems from the fact that nearly all business disputes are resolved, and that savings are therefore best realized by reducing the time between commencement to resolution.
The starting point for the process that Lurie and Lack recommend is also refreshingly practical: They address disputes at the point of impasse, not at the point of emergence. We are dealing, after all, not with disagreements, but with disputes in which “the parties are deadlocked and unable to reach agreement.” After the threshold decision to engage a facilitator to assist, the first task of that neutral third party is to assist the parties in diagnosing why they were unable to resolve that matter themselves. In that process, “they key protagonists and the stakeholders can take a step back and gain a better mutual understanding of what underlies their past impasses, and how to adjust the settlement process to prevent and overcome further impediments to settlement.”
The process to move forward is, then, a function of the diagnosis. Mediating a narrow negotiation is different from — and can be more expensive than — processes that arise from option-generation with the informed guidance of the facilitator. Collaborative discussions, targeted information exchange, reference of discrete legal issues to narrowly-tailored adjudicative processes, all are custom-selected by the parties in order to overcome obstacles that they themselves have identified. And even if negotiations are suspended during these events, the facilitator remains available to advise, coach, transmit information, and assist either or both of the parties in roles that they themselves define.
The Guided Choice analysis is a valuable one, not only for its simplicity but for its continual reminder that we are dealing, not with a “conflict,” but with a settlement effort that has come to the point of impasse. Identifying the reasons for that impasse, and overcoming obstacles to agreement, defines the role of the facilitator. “By using Guided Choice, the parties can safely explore how to make the best use out of each of the dispute resolution options available to them, and possibly combine them, to reach faster, cheaper and better outcomes.” Indeed, the authors suggest that “the best way to customize arbitration is by using a facilitator as a process mediator who can work independently and confidentially with the parties and the tribunal.”
