Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a Mediation-Centered Approach [1]

In Matching Cases and Dispute Resolution Procedures, Frank E.A. Sander and Lukasz Rozdeiczer address the question of how to select the most appropriate Alternative Dispute Resolution (ADR) procedure for a particular dispute. The authors start with the premise that the dispute resolution method chosen must be that which best satisfies the goals of the party, and arrive at the conclusion that mediation should be used at the outset of a dispute, except in rare cases.

At the outset, Sander and Rozdeiczer emphasize that a party should consider the process to be used in resolving a dispute so that it selects the process that best satisfies its interests, and also so that it is able to refine arguments to be used in convincing its opponents and a court that their process will be effective. Moreover, the authors urge that evaluation of dispute resolution processes should not take place only when conflict is imminent, but that the issue should be addressed when dispute resolution clauses in contracts are drafted. Even if a dispute resolution process is carefully selected, parties are urged to "continually question their choice of procedure throughout the process and keep a flexible mind attuned to possibly changing or modifying the selected procedure." [2] The reasons for keeping an open mind are obvious — new information can surface in the course of a relationship, meaning that the selected process is no longer able to achieve a party's goals. Sander and Rozdeiczer also urge that a party evaluate whether a public process, such as court-annexed mediation or some sort of court-annexed ADR program, or a private process like mediation, is best. Any party faced with selecting a dispute resolution process will be faced with an important decision: whether to evaluate the available procedures and then match the case to a procedure, or vice-versa. Professor Sander, in a 1994 article written with Stephen A. Goldberg, [3] swam against the prevailing current in the ADR community and suggested that the case be analyzed first, and then a dispute resolution process should be selected on the basis of that analysis. In their article, Sander and Rozdeiczer employ both the Sander/Goldberg approach, known as "Fitting the Forum to the Fuss," [4] as well as fitting the "fuss" to a forum.

In Part II of the article, the authors draw on prior scholarly work to propose a "revised comprehensive system" [5] for matching cases with dispute resolution procedures. They argue that three factors are most relevant in process choice: goals, facilitating features, and impediments. [6] For a party, examining process choice through the lens of their goals requires "ask[ing] what should happen as a result of the choice of the particular dispute resolution process." [7] Given that a party will usually have multiple goals, it will be necessary to prioritize among them.

Expanding on a table that was originally featured in the Sander & Goldberg article, [8] the authors in Table 2 award a numerical value for the degree to which a process is likely to satisfy a party's process goal. They stress that the table is illustrative rather than exhaustive, and that there could be goals not listed that could be relevant for a particular dispute. For the process goal of speed, mediation is assigned the highest value, three, meaning that it "satisfies the goal very substantially." [9] In contrast, mediation receives zero for the process goal of public vindication, meaning that it is unlikely to satisfy that goal. Sander and Rozdeiczer, using a hypothetical divorce, employ the table to illustrate how the goals of parties to a particular dispute will influence the process selection. From the perspective of Anna, the wife divorcing her husband John, mediation offers the highest chance of preserving an amicable relationship. Similarly, while litigation would offer Anna a potentially high cash settlement, mediation permits the possibility of value-creating alternatives that might make Anna better off on the whole. If Anna wants to expose her husband's wrongdoing, private mediation will not achieve this end when litigation could. In addition, Anna has to determine whether she wants a private contract to enforce their negotiated agreement or whether she wants to pursue court-annexed mediation resulting in a judicially-enforceable settlement.

Once a party has determined the goals it wants to achieve, Sander and Rozdeiczer suggest that each individual goal be ranked and assigned a weight to determine which particular process would result in the optimal fulfillment of the goals. Each of the concerns is assigned a weight in points, with the highest priority goal assigned a value of three, the highest number in the scale, and the least important goal assigned a zero value. [10] Then, the weight for each goal is multiplied by the value from Table 2 that indicates the effectiveness of each process in achieving the goal. After performing the calculation for each goal, the party would then add up the weight-effectiveness values for each process to determine which process would best realize their objectives. The authors believe that the process is worthwhile in spite of all the calculations involved but say that "[s]ometimes the primary benefit will be the exercise of going through this process rather than the numerical result achieved." [11] Although an individual may readily arrive at a determination of which process best satisfies its goals, friction could ensue when the other party to a dispute favors a different process. In such a situation, the authors suggest that the parties "agree to start from mediation, which seems to be a 'safe' procedure (no commitment) for both parties, unless the case is one when even mediation is not appropriate." [12]

Recognizing that each dispute is unique, Sander and Rozdeiczer observe that certain attributes of the dispute and the parties can facilitate arriving at a resolution but explain that the right process is needed to maximize the usefulness of these attributes. The authors' mixed approach to identifying a dispute resolution process requires analysis of the features of each process that can serve to advance the goals of the party. In Table 3, the authors outline facilitating features associated with various processes and identify the degree to which a procedure can achieve a facilitating feature, using the same zero-three scale as associated with Table 2. Sander and Rozdeiczer use a hypothetical business dispute involving John (the husband from the divorce hypothetical mentioned earlier) to contemplate process implications under a particular fact pattern. Of all the processes mentioned in Table 3, only litigation and arbitration have formalized procedures and, as a result, the authors concentrate their discussions on these processes. Furthermore, given the wide array of procedural features associated with litigation and arbitration, the authors focus on how a party's desire for discovery, formal hearing, and third party involvement will influence choice of procedure.

The authors urge parties to explore whether features of the case or the parties involved make a dispute amenable to a problem-solving approach. [13] The process chosen is the key to employing a problem-solving approach because "reaching a creative solution is one of the greatest advantages of processes where parties control the outcome[.]" [14] When parties and their counsel approach the dispute with a cooperative mindset, the authors suggest that this is a solid indicator that a problem-solving approach will resolve the case. On the other hand, other features of a party or the case may make it difficult to adopt a problem-solving approach. For instance, when a party feels certain of its success in court or in arbitration, when it does not want disclosure of certain information, or when it wants public vindication, a problem-solving approach will likely be rejected. Or, when a case "turns on the existence of a fundamental principle," [15] or involves a single issue, a problem-solving approach will probably not be used. Attributes of the parties will also influence whether or not a problem-solving approach can be effectively used to resolve a dispute. For instance, if the parties to a dispute enjoy a positive, trusting relationship, then this is a good indication that a problem-solving approach can be employed. Another factor that can influence the process choice is the dispute resolution style of the parties and their lawyers. If an opponent has a competitive style, then it may be best to avoid a negotiation-based procedure whereas a cooperative style facilitates the use of a problem-solving approach. Also, if a party or lawyer feels that she has strong negotiating skills, then her side will readily engage in negotiation to take advantage of this ability.

While Sander and Rozdeiczer's approach suggests that parties begin their dispute resolution with mediation, they are mindful that "[t]here are cases in which impediments can be better overcome by some adjudicative procedure" and that "[t]here are other instances where settlement is not an appropriate resolution of a case." [16] In Table 4, the authors evaluate the capacity of a particular process to surmount various impediments to the resolution of a dispute and again use a zero-three scale. As an example, mediation scores three for ability to overcome the impediment of poor communication, and arbitration is awarded a score of two for its capacity to resolve different views of the law. In this section of the article, the authors discuss two of the impediments to resolving a dispute that they view as being most challenging: power imbalance; and questions of law, of fact, or both. The question of power imbalances and process selection is an unresolved question in the ADR field. Of the three ways in which disputes are resolved, [17] an interests-based approach is typically preferred as it can provide flexibility. However, there exists a danger that an interests-based approach like mediation would permit the more powerful party to exploit its strength. JDR commentators disagree "not only whether mediation could mitigate power imbalances but, more importantly, whether it ought to do so." [18] Sander and Rozdeiczer urge that parties should be aware of their sources of power [19] and that the weaker party should select a forum where her powers will be relatively strongest. For instance, a party that has strong legal arguments may choose litigation over negotiation, or a party without the financial resources to go through extensive discovery would prefer mediation over litigation. As far as questions of law, of fact, or both — the second impediment discussed — are concerned, the authors note that facilitative processes like mediation are not well suited to disputes where facts must be resolved, especially when witness credibility or extensive discovery will be involved. Nonetheless, Sander and Rozdeiczer advise that parties can work around a factual dispute by electing to employ a forward-looking facilitative method or by resolving their dispute on the basis or some criteria other than facts. Another option would be for parties to first use an evaluative process to resolve outstanding factual issues, and then proceed with a facilitative process like mediation. When only legal issues must be resolved, the authors admit that "a court proceeding may be the most efficient approach" [20] and that this is especially true when there is a need to establish a precedent.

Part III of the article is an explanation of the authors' proposed "User-Friendly, Mediation-Centered Approach." The first step in the process is for the parties to assume mediation will be their starting process. Drawing on their examination in Part II of the Article as well as empirical data, Sander and Rozdeiczer identify two categories of benefits from using mediation: macrobenefits and microbenefits. The macrobenefits of mediation include that mediation is capable of resolving disputes in most cases; that mediation, even if ineffective, can serve as a conduit to an effective process; that mediation is flexible; that a settlement resulting from mediation is more likely to be complied with; and empirical research indicates that practitioners and parties prefer mediation. Microbenefits arising from mediation include clarifying issues in dispute; channeling emotional aspects of a dispute; allowing for the chance to apologize; permitting the use of creative solutions and value trade-offs; and providing an intermediary who can make counteroffers seem more acceptable and who can reframe proposals and inject their own ideas. Contrasting mediation and litigation, the authors observe that "[m]ediation's goals are contraindications to satisfactory adjudication, and adjudication's goals are contraindications to mediation." [21] Therefore, either mediation or litigation will achieve the goal of the parties in the vast majority of cases, and when litigation will not satisfy the goals of the parties, mediation should be used.

The second step in the process is to determine if there are features of the case that make mediation an inappropriate procedure choice. For instance, if the party aims to create a legal precedent or wants public vindication, then litigation would be a better choice. Oftentimes, mediation will be less successful than another procedure and there are partial contraindications against mediation. Having to resolve an outstanding legal issue, the need for judicial enforcement, and differing views of facts are partial contraindications against mediation. The authors do not believe that the presence of partial contraindications mean that parties should rule out the use of mediation, but instead caution that the partial contraindications should be weighed against the other factors influencing process choice. In the event that such an evaluation makes a 50-50 case for mediation, Sander and Rozdeiczer believe that mediation should be used, as it is a "hospitable procedure" [22] and it is easier for parties to transition from mediation to litigation than vice-versa.

Step 3A requires that the parties select which type of mediation will be used in their case. The authors identify the most important kinds of mediation as: facilitative/elicitive; evaluative/directive; transformative/problem-solving; and court-related/out-of-court. Also, mediators can adopt approaches at various points along an evaluative/facilitative continuum. Some parties will have a better idea of what type of mediation they want to use, but in other cases, selecting a particular mediator may be the first step and then that individual would direct the parties to select the most beneficial process type. In Step 3B, the authors pose the question: "If Not Mediation, then What?" [23] Where mediation is ineffective, parties should perform the three-step analysis outlined in Part II to find a process appropriate to resolve their dispute. Nonetheless, Sander and Rozdeiczer believe that cases where mediation will be ineffective are extremely rare, especially given that ninety-eight percent of civil cases in the federal courts settle before trial. [24] The authors concede in their conclusion that there is no definitive answer to the question of matching cases and dispute resolution procedures, but believe that in the vast majority of cases, using a form of mediation at the outset will be most productive. The authors' framework for selecting a procedure is clearly explained and attorneys and other ADR professionals will no doubt find it useful in their practice. Judges too will surely be thankful for any slimming of their burgeoning dockets if fewer parties avoid instinctually resorting to litigation when other procedures may more effectively resolve their dispute.

[1] Frank E.A. Sander & Lukasz Rozdeiczer, Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a Mediation-Centered Approach, 11 Harv. Negot. L. Rev. 1 (2006).

[2] Id. at 4.

[3] Frank E.A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10 Negot. J. 49 (1994).

[4] See id.

[5] Sander & Rozdeiczer, supra note 1, at 7.

[6] Id. at 8.

[7] Id. at 10.

[8] See Sander & Goldberg, supra note 3.

[9] Sander & Rozdeiczer, supra note 1, at 12, Table 2.

[10] See id at 17-18. The zero-three scale works in the same way as that used in Table 2. Id.

[11] Id. at 19.

[12] Id.

[13] See Sander & Rozdeiczer, supra note 1. at 24 (explaining that a problem-solving approach means that the parties "'focus on their actual objectives and creatively attempt to satisfy the needs of both parties, rather than [ ] focusing exclusively on the assumed objectives of maximizing individual gain.'") (Internal citation omitted).

[14] Id.

[15] Id. at 25.

[16] Id. at 27.

[17] See Id. at 29 (noting that "disputes can be resolved based on either: (1) rights of the parties, as through litigation, (2) parties' interests, often through facilitative mediation . . . , or (3) power[.]").

[18] Sander & Rozdeiczer, supra note 1, at 30.

[19] See id. The authors suggest that disproportionate power could come from: difference in financial resources, legal arguments and representation, negotiation skills, and emotional dependence. Id.

[20] Id. at 32.

[21] Id. at 36.

[22] Id. at 38.

[23] Sander & Rozdeiczer, supra note 1, at 40.

[24] Id.