Welcome to EDR
I am excited to tell you that I have been trained and certified as an Early Dispute Resolution (EDR) Neutral. EDR is a new-ish form of dispute resolution designed to resolve cases before or shortly after a lawsuit is filed. It meshes with everything I’ve said in my May and June blog posts about getting environmental and natural resources cases to resolution sooner and at a lower cost.
Why EDR?
If you wonder whether EDR may be appropriate for a case, consider:
- 95 to 98 percent of cases settle before trial. I could provide citations, but you can just Google it.
- Parties incur most of their litigation costs in conducting discovery, developing experts and preparing for trial. Corollary: To reduce those costs, you must undertake a meaningful, good faith mediation BEFORE THOSE COSTS ARE INCURRED.
- Any lawyer will tell you it is hard to evaluate settlement options until you have sufficient information about the claims and the facts. Corollary: Mediation won’t be successful before then. Second corollary: But you don’t need ALL the facts. You just need sufficient information for counsel and parties to reasonably evaluate their settlement options.
- What if there was a process to engage in a very limited, but focused, information exchange very early in the case followed immediately by mediation? That is exactly what Early Dispute Resolution is.
What is EDR?
The Dispute Resolution Section of the American Bar Association (ABA) formed a Task Force on Early Dispute Resolution in 2011. The work of that Task Force eventually spurred the development of EDR as a distinct form of dispute resolution. In 2019, the EDR Institute published its EDR Protocols, which provide a framework that can be adapted as needed to match the needs of a specific case.
Generally, here’s how an EDR process plays out:
- The EDR process begins immediately, preferably before a lawsuit is filed. The parties set a timeline for getting to an in-person mediation—ideally within 30-60 days.
- The parties and their counsel conduct their own initial case assessments to identify the core claims and defenses. The EDR Neutral then works with counsel to quickly identify a narrow but focused set of information the parties must exchange in order to evaluate settlement options. No one gives up discovery rights in the event mediation is not successful.
- The parties exchange the required information. In extraordinary cases, this could include very limited interviews of witnesses and even exchange of focused expert reports (which may not be used if the case goes to litigation).
- The EDR Neutral works with each party and their counsel to conduct their own risk-benefit analysis, looking at both monetary expected values and subjective risk factors.
- Within this framework, the EDR Neutral mediates principled negotiations between the parties to get to resolution.
Will it work?
Michael Hawash, Esq., a mediator, EDR Neutral, and trustee of the EDR Institute, has helped establish an EDR mediation program in the Harris County, Texas, court system. He has taken numerous cases through EDR. Michael reports that, in his experience, EDR mediations have essentially the same success rate as mediations conducted right before trial. That is, EDR parties have as good a chance of getting to settlement as they would have if they waited, but they save the time and money that full discovery and trial preparation require.
Yes to EDR
In conclusion, if EDR succeeds, you save time and money. Even if EDR does not succeed, you have lost very little because your preparation for EDR is likely work you would have done anyway, and you have not prejudiced your case. So, what’s not to like?
If you want more information, please give me a call. I’ll be happy to discuss whether EDR might be a good fit for your case. Also, the June issue of the Just Resolutions publication of the ABA Section of Dispute Resolution is devoted entirely to the topic of EDR.