Ten Essential Elements of an Effective Dispute Resolution Program
![handle is hein.journals/pepds8 and id is 403 raw text is: [Vol. 8: 3, 2008]
PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL
Ten Essential Elements of an
Effective Dispute Resolution Program
Stephen F. Gatest
Dispute resolution has evolved far beyond the early days when ADR
was often taken to mean only mediation to be followed, if necessary, by
binding arbitration. Now business lawyers and business executives realize
even more acutely that disputes can be very costly, distracting and damaging
to relationships and that formal arbitration can be nearly as expensive and
protracted as litigation. What really benefits a company in a dispute is an
early optimal outcome that takes into account a variety of considerations and
dynamics that are often unique to the circumstances. Such an outcome
requires thorough analysis and creative thinking about ADR approaches.
While winning in litigation for one party is a favorable decision or verdict
sustained on appeal, winning in dispute resolution is reaching an early
optimal outcome. Of course, there will be situations in which even the best
of efforts cannot avoid litigation or contractual binding arbitration.
For an organization with a significant number of outstanding lawsuits
and pre-litigation claims, it is important to have a comprehensive and
disciplined program of managing disputes to produce optimal outcomes with
consistency, effectiveness and cost efficiency. Based on my experience at
large, complex industrial companies with well over 2,000 litigation matters
outstanding at any time, the effective management of the dispute portfolio
requires that each matter be managed effectively and that more matters be
resolved each year than the number of new matters that arise. The focus of
this article is corporate law departments, but the concepts are applicable to
any organization. To manage disputes when matters are being handled by a
number of in-house lawyers and retained outside counsel requires adherence
to a coherent system that has the following critical elements.
1. Practice the ADR Pledge. The right context for a company's
systematic approach to dispute resolution is set by being signatory to the
ADR Pledge maintained by CPR-The International Institute for Conflict
t Stephen F. Gates is Senior Counsel at Mayer Brown LLP and former Senior Vice President and
General Counsel of ConocoPhillips. He acts as arbitrator and mediator in complex commercial
disputes.
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Ten Essential Elements of an Effective Dispute Resolution Program
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