EDR's Streamlined Information Exchange Promotes Informed Decisions
The Early Dispute Resolution (“EDR”) protocols appreciate the potential for a ying-yang relationship between the value of discovery and its costs. As a result, the protocols seek to balance the competing interests of time and money with the value of having control, certainty, and efficiency over dispute resolution decisions. All the while, the protocols are drafted to foster and promote informed decisions.
For parties who understand and appreciate that full-blown discovery in litigation is imperfect, time-consuming, and expensive, EDR can be an appealing option to consider. In part, because it’s designed to help parties make informed choices within a structured and efficient mediated process, which allows them to control how and when their problem is solved.
One typically thinks of informed decisions as those that are supported by facts and information. How much information is needed to make an informed decision may be subject to debate in any given situation. But there can be little disagreement that business owners and executives routinely make and control important decisions based on limited information, within limited time periods, and out of the public’s view. To those parties, through EDR’s streamlined information exchange protocol, the decision-making process may look-and-feel similar to many other business decisions.
Parties engaged in EDR agree either to (a) forego the expense of discovery or (b) participate in a streamlined, focused information exchange process facilitated with the EDR mediator. As part of a negotiation process, as the name implies, EDR mediations occur either before a lawsuit or arbitration proceeding is filed or shortly thereafter. From start to finish, an EDR mediation generally takes place over a 30- to 90-day period.
“Discovery” within the EDR process, while designed to be meaningful and relevant, is different than discovery in full blown litigation. It’s more of an information-exchange which is not intended to “leave no stone unturned,” but rather to streamline the “discovery process” to focus on key information necessary to make informed decisions concerning possible paths to resolution. If appropriate and necessary, the information exchange may include witness interviews and/or short depositions (either on or off-the-record), in addition to streamlined document exchanges and interrogatories. Through this process the goal is to help the parties acquire “sufficient information” to inform their settlement negotiations.
“Sufficient information” provides a level of understanding of the key facts and legal issues from which an informed decision can be made about a dispute’s expected monetary value (EMV). A dispute’s EMV is a “forecast of estimated possible case outcomes discounted by the predicted likelihood of their occurring.” Once the parties have considered the information provided, they should be in a position to negotiate a settlement either informally through phone calls, meetings, and/or emails or may request a formal mediated negotiation session with the EDR mediator.
Through the formal EDR process, the mediator’s focus and goal is to help the parties efficiently and effectively gather and exchange the information each needs to reasonably assess the conflict and it’s risks in order to make an “informed judgment” about whether to resolve the dispute in its early stages and, if so, on what terms (e.g., for what amount).
In short, EDR’s systematic approach to information gathering offers parties an approach to solving a legal problem in a manner and with a means that, arguably, looks-and-feels more like the process business owners and executives implore in solving business problems and less like litigation.
If you are interested in learning more about EDR or want to consider using it in your effort to resolve a dispute, Felicia has been trained by the EDR Institute and is available to assist.
Felicia Harris Hoss
is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.
