February 1, 2010
Lande on Early Case Handling and Private Dispute Resolution
John Lande has posted The Movement Toward Early Case Handling in Courts and Private Dispute Resolution to SSRN.
This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate.
The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, settlement counsel, and Collaborative and Cooperative practice.
ECH processes offer many potential benefits for parties, lawyers, courts, and society. Earlier resolution offers the potential of efficiency resulting from conscious efforts to streamline the process, reducing unproductive efforts such as excessive and unfocused discovery. Earlier resolution should generally reduce indirect costs of prolonged disputing, such as opportunity costs and damage to relationships and reputations. ECH processes may not be appropriate in some situations. When used well and in appropriate cases, there should be few or no disadvantages.
ECH processes are not uniform “off-the-shelf” products that can simply be “plugged into” dispute systems on the flawed assumption that people will simply follow directions to use them as intended. Instead, for ECH processes to work properly, system designers need to assess the motivations of the system participants and tailor processes so that people will be motivated to use them effectively.
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